WALLACE V POLICE HC HAM CRI 2008-419-000068 [2009] NZHC 286 (9 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                     CRI 2008-419-000068



               BETWEEN                       LEON JAMES WALLACE
                                             Appellant

     
         AND                           POLICE
                                             Respondent


Hearing:       6 March 2009

Appearances: S K Green for Appellant
             P V Cornege for Respondent

Judgment:      9 March 2009


                   
         JUDGMENT OF COOPER J


                       This judgment was delivered by Justice Cooper on
                        
    9 March 2009 at 9.15 a.m., pursuant to
                                r 11.5 of the High Court Rules

                     
           Registrar/Deputy Registrar
                                 Date:




Solicitors:
Almao Douch, Crown Solicitors, PO Box
19173, Hamilton 3244
Copy to:
S K Green, PO Box 14, Whatawhata




WALLACE V POLICE HC HAM CRI 2008-419-000068 9 March 2009

[1]
   The appellant pleaded guilty in the District Court to one charge of assault
using a weapon, one charge of injuring with intent
to injure and one charge of
assault. The charges were laid respectively under ss 202C, 189(2) and 196 of the
Crimes Act 1961. The
first two carried maximum potential terms of imprisonment
of five years in each case.


[2]    After he pleaded guilty, Judge Ross
sentenced him to an effective term of
four years six months' imprisonment. In doing so, he made the sentences on the
second and third
offences concurrent, but the sentence on the second was cumulative
on the sentence for the first. The sentences imposed were:



      a)      On the first charge, imprisonment for one year ten months.


       b)      On the second charge, imprisonment for
of two years eight months.


       c)      On the third charge, imprisonment for three months, to be served
               concurrently
with the term imposed on the second.


[3]    The appellant now contends that the sentences imposed were clearly excessie.


Background


[4]    The first charge related to an incident which occurred on 31 December 2007.
At about 8.30 p.m. on that day the appellant
was at home with his partner, who was
the victim of his assault. During an argument between the two of them he grabbed a
glass beer
bottle and threw it at the victim striking her on the forehead. The impact
of the bottle caused her to fall backwards onto the ground.
She used her cell phone
to call the police, while he verbally abused her. When the telephone call was
completed, he punched her on
the head on several occasions. She suffered a small
laceration, and bruising to her forehead, the back of her head and her jaw.


[5]    The second and third charges were based on events that occurred on 1 April
2008. At approximately 6.00 p.m. on that day the
same victim had arrived home
with a female friend to find the appellant in the carport. He was intoxicated, and

abused her. He
took hold of an empty wine bottle and hit the victim on her forehead
with it. The wine bottle broke on impact. As the complainant
left, he threw a full
can of beer at her, hitting her in the back. The last action formed the subject of the
third charge.


[6]
   As a result of the incident with the wine bottle, the victim suffered a
laceration to her forehead and bruising.


[7]    It is
important in the circumstances of this case to note that, on 1 April 2008,
when the events on which the second and third charges
were based took place, the
appellant was on bail on the first charge. A depositions hearing had been set for
30 June 2008, however
on that day he entered guilty pleas in respect of all three
charges.


The sentence imposed in the District Court


[8]    The Judge
briefly set out the facts, noting his view that "arguably the worst
situation arose on 1 April 2008". At [3], he explained the reason
for that view as
being that at that stage the appellant had been on bail in respect of the 31 December
2007 incident and there had been a remand until a date later than 1 April for the
depositions
hearing at which the victim would be required to give evidence.


[9]    The Judge mentioned the appellant's previous convictions
in respect of
crimes of violence and, in particular, offending against the same complainant.
Although he did not set out a full account
of the appellant's previous offending, the
material before him showed that the appellant had 31 previous convictions
committed from
1983 to July 2007. They included four offences of male assaults
female, assaulting with intent to injure, threatening to kill or
do grievous bodily
harm, two charges of common assault, three charges of contravention of a protection
order and seven counts of
wilful damage.


[10]   Previous offending that related to the present victim included one charge of
male assaults female in July
2007, two charges of male assaults female in May 2007,
one charge of male assaults female and wilful damage in March 2007, assaulting

with intent to injure in August 2005, threatening to kill or do grievous bodily harm in
August 2005 and common assault in August
2005. For those offences a range of
penalties had been imposed, ranging from community work and supervision, to
terms of imprisonment
of nine months.                 There were two previous assaults
(committed in March and July 2007) in which the appellant had attacked
the victim's
head.


[11]    The Judge observed that the previous penalties imposed had not appeared to
promote any sense of responsibility
in the appellant, or instil in him an
acknowledgement of the harm that he had caused to the victim.                             
  In the
circumstances, the need for denunciation and deterrence were obviously important
considerations, as the Judge emphasised.


[12]    The Judge noted that in relation to the first charge, the appellant had been
subject to release conditions when the offence
was committed. In relation to the
second and third charges, the Judge emphasised that he had been on bail. He
referred to the fact
that there had been what he described as "belated" guilty pleas.
There was reference to treatment which the appellant had undergone
for an
"undisclosed illness" which might have affected his behaviour when under the
influence of alcohol. Ms Green has not emphasised
that aspect of the appellant's
circumstances on appeal.


[13]    The reasoning which led the Judge to impose the sentences which
he did was
contained in paragraphs [8] ­ [10] which I now set out.

        [8]      The issue then turns to where the Court should
start from a
        sentencing point of view in regards to each of the two incidents which are
        before the Court. In relation
to the first incident the view that I have
        expressed is that it is a lesser matter but not by much in relation to these

       charges. The approach that the Court takes in relation to that charge in its
        circumstances is that there has to be
a term of imprisonment which reflects
        the aggravating and mitigating features of the offence, as well as those which
   
    relate to you personally. In this case, as I have said, the weight that is to be
        attached to the plea of guilty is rather
less for its lateness and occurring after
        the second incident. In relation to that charge, with a maximum sentence of
  
     five years, in your situation if the Court were to commence with a term of
        imprisonment for a period of two years and
six months, which would be
        consistent with the higher of the authorities which are submitted to the
        Court, and allow
a discount of rather less than one third in light of the

       lateness of the plea of guilty. A term of imprisonment of one year
and 10
       months would be the outcome in relation to the first of these matters.

       [9]      So far as the second charge
is concerned, that is the more significant
       matter. If the Court were to look at the offences [sic] of the offending itself,
       in this case the more
deliberate nature of the assault with the bottle on your
       partner. Then again if there were to be any start point, again, the
Court
       might look at a term of two years and six months from which there might, in
       this case, be deducted again a period
of discount for the plea of guilty. But
       in this case, and it not having applied in respect of the first charge, the
     
 aggravating and mitigating features which are personal to yourself as would
       involve an uplift in relation to the sentence
which might have applied
       otherwise. Those uplifting features in the second case relate to the previous
       convictions,
to which I have referred, that you were on bail on that second
       occasion. That there is a second charge involving the beer
can and the uplift
       that would apply in relation to those matters would take it beyond the start
       point, only counting
those features in relation to the second charge. A term
       of imprisonment then, in relation to the second charge, with a concurrent
       sentence in relation to the beer can charge would be a term of imprisonment
       for a period of two years and eight months.

       [10]    The effect of this is a total term of imprisonment of one year and 10
       months and two years and eight months,
a term of four years and six months
       imprisonment. I have looked to see, in regard to these matters, whether
       combined
for these two matters this would be too much for you in your
       circumstances. I am exhorted by the authorities that are referred
to me by
       both your counsel and the prosecutor that there should not be a discount for
       repeat offending in bad circumstances.
That should be no different merely
       because you knew your victim, that it is something which has arisen in
       respect of
domestic violence. I am not persuaded that the sentence of four
       years and six months is too high in light of the matters which
are referred to
       me. The sentences will be served on a cumulative basis to a total of four
       years and six months. A three
month sentence in respect of the assault
       charge will be served on a concurrent basis and is not added to the two years
  
    and eight month sentence in relation to the second charge.

[14]   It appears that in respect to the first charge, the Judge
adopted a starting point
of two years six months, from which he simply deducted a period of eight months to
give credit for the guilty
plea, resulting in an end sentence of one year and ten
months.


[15]   In relation to the second charge, the Judge again adopted
the same starting
point of two years and six months. Although it is not clearly articulated, it can be
inferred from the language
of [9] above that from that starting point the Judge must
have allowed a significant discount for the guilty plea. I say that, because
the final
sentence imposed on the second charge was two years eight months. An uplift of
only two months from the starting point,
which would have to be postulated if there

were no discount, would have been clearly inadequate to reflect the aggravating
features.


[16]   The discount given for the guilty plea in respect of the first charge was a little
over 26 per cent. It seems reasonable
to assume that, the second charge having been
committed much closer to the date when the guilty plea was entered, a larger
discount
would have been given. If a discount was given of 30 per cent, then the
final sentence of two years and eight months would have allowed
one year and eight
months in respect of the aggravating features. There is no doubt that the aggravating
features in this case were
important and serious. Not only was there a substantial
history of previous crimes of violence, but much of them had involved the
same
victim who was subject to the present charges. There was in addition, the fact that
the second offence had been committed when the appellant was on bail for the
first.


The appeal


[17]   Ms Green argued for the appellant that the Judge had adopted a starting point
in respect of both the
first and second charges, which in each case was too high. She
pointed out that although the offending had involved a weapon, in
each case a bottle,
the weapon was not an inherently lethal one, such as a knife or a gun. Furthermore,
the injuries that the complainant
had sustained on each occasion were not such as to
justify the starting point adopted by the Judge.


[18]   Ms Green conceded that
the second incident was more serious than the first.
She submitted that starting points of 18 months would have been appropriate
for the
first, and two years for the second. She contended that it had been wrong for the
Judge to impose cumulative sentences, arguing
that the offences were of a similar
kind and a connected series. She argued that in any event, the sentences imposed
offended against
the totality principle set out in s 85 of the Sentencing Act 2002.
She submitted that the totality of the offending, taking into
account the gravity of the
offending, the appellant's history and the other aggravating aspects of the offending
and making allowance
for the guilty pleas, would have justified no more than an
effective sentence of three years, no matter what process had been adopted
to
achieve that outcome.

[19]   For the Crown, Mr Cornege, submitted that the sentences imposed in respect
of the first two offences
were not clearly excessive, that the Judge had not erred in
imposing cumulative sentences for the first two offences and that the
effective
sentence of four years and six months, although stern, was within the range properly
available to the Judge.


[20]   Mr
Cornege emphasised that in relation to assault with a weapon, it is the
potential for injury rather than the injury actually sustained,
that is important in
assessing the seriousness of the offence. In that respect, he relied on R v Hensley
(CA50/02, 18 April 2002).


[21]   He referred in addition to R v Clarke (CA128/06, 6 June 2006) in which the
Court said, at [14]:

       Cumulative sentences
for the acts of violence inflicted upon the victim were
       fully justified. Those who inflict serious violence upon females,
whether
       partners or not, at different times and different places cannot expect as a
       general course for sentences of
imprisonment to be concurrent. A
       "concession" for multiple offending cannot be expected by such offenders.
       In addition,
it may be a proper ground for making a sentence cumulative if it
       was committed after the grant of bail; see R v Wallace  [1983] NZLR 758
       (CA) and R v Young  [1973] Crim LR 585. Of course, the totality principle
       requires that the effective sentence not be out of proportion to the overall
       culpability
of the offender but established authority is clear that the totality
       principle is not a discount for bulk offending; R v Lucky
 (1974) 12 SASR
       136; R v Knight  (1981) 26 SASR 573; R v Goodhew (CA128/81 16
       November 1981.

[22]   In the result, Mr Cornege submitted that the sentence imposed property
reflected
the overall criminality of the appellant's offending, having regard to his
previous history against the same victim.


Discussion


[23]   Although the approach adopted by the Judge was to impose cumulative
sentences, his approach was in some respects analogous
to that which might be
followed if concurrent sentences were to be imposed (see the Sentencing Act,
s 84(4)(a)).   In that respect,
he weighted the second charge, which he said
represented the most serious offending, to reflect the aggravating circumstances of

the appellant's history. It was also that offence that had been committed while the
appellant was on bail.


[24]   Notwithstanding
Ms Green's submission to the contrary, it seems plain both
on the wording of s 84 of the Sentencing Act, and having regard to what
was said by
the Court of Appeal in R v Clarke (quoted above) that there can be no criticism of
the Judge for imposing cumulative
sentences in this case.


[25]   The first point to emphasise about s 84 of course, is that it is there for
"guidance".    Secondly,
the statement in s 84(2) that concurrent sentences of
imprisonment are generally appropriate if the offences for which an offender
is being
sentenced are of a similar kind and are a connected series of offences, must be read
in the context of s 84(3). The latter
enacts that in determining whether or not
offences are a connected series of offences, the Court must consider the time at
which
they occur, the overall nature of the offending and any other relationship
between the offences that the Court considers relevant.
Here, although the offences
were similar in kind, I do not think it is right to say that they were "connected" in a
way which could
have compelled the Judge to impose concurrent sentences.
Certainly, they involved acts of violence committed against the same victim.
There
had, of course, been previous occasions on which the appellant had assaulted her.
That does not mean that the offending is
to be seen as a connected series. There was
three month gap between the offence dates and I do not consider that the Judge's
decision
to impose cumulative sentences can be faulted.


[26]   However, as the Court of Appeal has observed on numerous occasions, what
matters is not the process or reasoning adopted by the sentencing Court to arrive at
the final sentence. The issue is whether or
not the sentence actually imposed can be
said to be clearly excessive (R v MacCulloch  (2004) 21 CRNZ 268 at [50]). Where
there is more than one offence before the Court, the provisions of s 85 of the
Sentencing Act must always be taken
into account. Where cumulative sentences are
imposed, then, under s 85(2) the result must not be a total period of imprisonment
that
is "wholly out of proportion to the gravity of the overall offending".

[27]   In assessing the gravity of the offending, regard
can be had to the matters
listed in R v Taueki  [2005] 3 NZLR 372 (CA) at [31]. Here, there is the use of
weapons, and attacks to the head. It is not without significance either that the second
offence
involved an attack on the complainant, who the appellant then knew would
be the Crown's principal witness at depositions on the first
charge. Consequently,
although it could not be said that the injuries sustained by the victim were serious,
there were aggravating
factors which, in relation to the second charge, amply
justified a starting point within a range including that adopted by the Judge.


[28]   One difficulty with the sentence is that the Judge appears to have regarded
the second incident as being more serious than
the first, yet he adopted the same
starting point for both. Certainly, by the time the second incident occurred, there
was the additional
aggravating circumstance that the trial was forthcoming.         In
addition, the violence on the second occasion appears, as Ms
Green submitted, to
have been more serious. It is apparent from the sentence that there was doubt that
the bottle thrown on the first
occasion was actually aimed at the victim's head,
although it was the head that was struck. On the second occasion, there was no
doubt about the appellant's intent, and indeed, the bottle shattered on impact.


[29]   Against the background of those considerations,
I am of the view that a lower
starting point than two years and six months would have been appropriate in respect
of the first incident,
and the Judge's starting point was too high. A starting point of
one year nine months would have been sufficient to take into account
the gravity of
the offending.


[30]   Otherwise, there was merit in the Judge's approach and plainly he did not err
in dealing with
the aggravating circumstances together in the sentence imposed in
respect of the second charge. Assuming on that charge that a generous
allowance
were made for the guilty plea (it occurred at depositions about two and a half months
after the appellant's first appearance
on that charge) the aggravating circumstances
that were then properly taken into account were clearly such as to justify the final
sentence that the Judge imposed on that charge.


[31]   No issue arises in relation to the sentence imposed on the third count.

[32]     As a result of the starting point adopted in respect of the first charge, I am of
the view that, having regard to the
totality principle, the overall effective sentence
was too high. I would reduce the sentence imposed on the first charge by nine
months to overcome that difficulty. An effective term of three years nine months
would effectively mark both the gravity of the offending
and reflect the appellant's
poor record, notwithstanding that, the harm caused to the victim was not severe.


Result


[33]    
In the result, I would allow the appeal by quashing the sentence imposed in
respect of the first offence and substituting a sentence
of one year and one month. In
all other respects, I confirm the sentence imposed in the District Court with the
consequence that
the sentence entered on the second offence is to be served
cumulatively on that imposed on the first. The sentence on the third offence
remains
concurrent with the sentence on the second.


[34]     The result is an effective overall sentence of three years nine months.