R V ROWELL HC PMN CRI-2009-054-1778 [2009] NZHC 765 (7 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                         CRI-2009-054-1778



                                     THE QUEEN



                                            v



                          
    IVAN COLIN ROWELL



Charges:       1.       Attempted murder
               2.       Aggravated assault
               3.  
    Assault with intent to injure
               4.       Injuring with intent to injure

Plea:          Guilty

Counsel:       A
S Hall for Crown
               F D Steedman for accused

Sentence:      7 July 2009

               Imprisonment
              
1.     Seven and a half years
               2.     One and a half years
               3.     One and a half years
            
  4.     One year
               Sentences concurrent




                    SENTENCING NOTES OF MACKENZIE J




R V ROWELL HC PMN
CRI-2009-054-1778 7 July 2009

[1]    Ivan Colin Rowell, you appear for sentence on one count each of attempted
murder, aggravated
assault, assault with intent to injure, and injuring with intent to
injure. You pleaded guilty at a very early stage, prior to depositions.


Background


[2]    You were married to your estranged wife for four and a half years. During
the period leading up to the offending,
your marriage broke down and you moved
out of the house that you shared, eventually into the house of a friend in the same
street.
During this period you were also made redundant and suffered financial
problems.


[3]    On 18 April 2009 you left a note for your
wife, asking her to come over to
talk. She did not do so. You commenced drinking by yourself, and then moved to a
barbecue at another
address in the same street. On the same day your wife had
houseguests, including her new partner, and a male friend of his. Your
stepdaughter,
aged 13, was also present.


[4]    While at the barbecue, you went to the garage at that address and removed a
pump-sprayer
containing a residue of pesticide. You filled it with petrol. You also
removed a boning knife. You then proceeded to your wife's
address. When she
partially opened the door you pushed the sprayer wand through the gap and sprayed
her in the face with petrol.
You then forced your way into the house, sprayed her
with further petrol and walked through the house spraying it. That is the basis
of the
aggravated assault count. Her partner then intervened and forced you into a chair
and attempted to disarm you. You said that
you would kill him, and stabbed him in
the stomach several times, resulting in an extensive full thickness incision reaching
from
his lower abdomen to his chest. This caused part of his intestines to spill out
from his body. As the medical reports put it he was
in effect eviscerated by you. He
also suffered a number of other cuts to the stomach, hand and arm. He required
extensive surgery
for his injuries which were severely life threatening. That is the
subject of the attempted murder count.

[5]    Your stepdaughter
walked past you during this altercation and you attempted
to stab her in the stomach.       The knife penetrated three layers of
clothing and
punctured her skin. She required minor treatment. That is the subject of the injuring
with intent to injure count.


[6]    The other visitor then intervened and succeeded in disarming you. In the
process he suffered a minor cut to his finger which
did not require treatment. There
is no charge in respect of that aspect of the incident.


[7]    You then set off in pursuit of
your wife. She ran from the house but you
followed her and cornered her. You told her that you were going to kill her. You
then punched
her in the head, and in the face, and in the body, resulting in bruises.
That is the basis of the assault with intent to injure count.


[8]    You then left the address, but returned when police arrived and gave yourself
up. You told the police that you had just
cracked, but declined to give a statement.
As I mentioned you pleaded guilty at a very early stage after you were first charged.


[9]    As to your personal circumstances you
are 51 years old and in good health.
You are in the process of applying for bankruptcy. The probation report assesses
you as being
at low risk of re-offending using their risk analysis tool, but the
probation officer assessing your file considered that the nature
of your offending
suggested a higher risk than this. You have no previous convictions, apart from two
drink driving incidents many
years ago, both of which seem relatively minor. This
offending was completely out of character. Your counsel submits that when the
offending took place you were in despair. Your marriage had effectively come to an
end several weeks before when your wife made it
plain to you that she wanted to
leave the marriage. This took you by surprise. You left the family home. Within a
very short time
your wife began the new relationship which led to this offending.
Around that time you were made redundant and could not find other
work.


[10]   I approach the task of sentencing you by first fixing a starting point for the
most serious charge, that of attempted
murder. Because all of the offending occurred
in the one incident, I consider that concurrent sentences are appropriate, so I must

make an upward adjustment to that starting point to reflect the offending against the
other victims. The total starting point must
then be adjusted first to take into account
the totality principle, and then to reflect your mitigating personal circumstances. The
aggravating features of the offending as a whole are described in counsel for the
Crown's written submissions. They appear from the
description which I have given
and I do not elaborate them here. I accept those features as referred in the Crown's
submissions.


[11]   Attempted murder is an offence for which there is no guideline judgment to
assist me in determining appropriate sentence.
The circumstances can vary very
widely. Counsel for the Crown and your counsel have both referred to the guideline
judgment for offences
involving serious violence, R v Taueki  [2005] 3 NZLR 372.
Counsel submits that that is an appropriate framework in which to assess a starting
point, and counsel for the Crown submits that
the application of the Taueki
principles, by analogy, was applied in R v Masoe HC WN CRI-2006-091-352
15 September 2006 by this Court.
In this case, I do not consider that the Taueki
guidelines can be followed too closely. Attempted murder, like murder, is often a
crime with unique features which separate it from other cases of serious violence.
The circumstances of this offending are not those
of the all too common categories
of violent offending to which Taueki is principally directed. I prefer to approach the
matter on
the basis of other comparable cases of attempted murder. The Court of
Appeal in R v Tuuta CA296/00 21 September 2000 was concerned
with a similar
situation on the facts to yours. The offender's relationship had come to an end and
he attacked the victim and her
new partner with a hunting knife inflicting numerous
and life threatening wounds. The attack took place in the victim's home. The
Court
of Appeal upheld an end sentence of ten years following a guilty plea. The Court
noted that sentences for attempted murder
have often ranged from five to 12 years
imprisonment and that cases broadly similar to that one had attracted sentences
between eight
and ten years and noted that the home invasion legislation, then
recently enacted, could have supported a higher sentence. In R v
Steeman CA105/03
5 June 2003 the Court of Appeal upheld a sentence of ten years imprisonment, after a
guilty plea, for similar offending.
In R v Lykles CA3/88 7 March 1989 a sentence of
ten years after a plea of guilty to attempted murder for an incident with similarities
to
this, but with more serious injuries, was upheld.              In R v Khan CA83/02

4 December 2002, a starting point of ten
years was considered appropriate for an
attempted murder by stabbing with a kitchen knife, causing two deep wounds and
superficial
cuts.


[12]   In Masoe, there were considerable similarities to this case. There, Clifford J
adopted a starting point of nine years.
Another case with considerable similarities to
this is a case in which I was sentencing Judge and in this Court in R v Bell HC PMN
CRI-2003-031-881 1 July 2004. The offender had attacked his partner, who was
staying at a friend's house after an argument with the
offender and stabbed her with
a kitchen knife. I imposed a sentence of nine years imprisonment after trial.


[13]   Having regard
to those cases, and a number of others which I have not
specifically mentioned, I consider that, for the attempted murder charge
standing
alone, a starting point of nine years is appropriate.


[14]   I propose to treat together the two counts which relate to
your wife. Those
are the spraying with petrol when you first entered the house, and the punching of
her later in the incident. Both
of those were serious assaults. It is fortunate that you
had been disarmed by that stage or the effects might have been much more
serious
than they in fact were. Counsel for the Crown refers to the description of the
domestic assault in Taueki, which refers to
starting points of four or five years.
Counsel also refers to R v Fekita  [2008] NZCA 108, where a starting point of two to
three years for a serious domestic assault was considered appropriate. I regard the
offending against
this victim as justifying a starting point of two and a half years.


[15]   The count of injuring with intent to injure relates
to the stabbing of your
stepdaughter, causing a minor injury. The youth of your victim, and the beach of
trust implied in an attack
on your stepdaughter, are aggravating features. Your
counsel has mentioned this morning the regard in which you held your stepdaughter
and the fact that she became a victim of your violent rage is a matter which will
affect both her and you for a very long time. She
will have been scarred emotionally
more than physically by the incident.            Decisions in R v Monika CA49/032
2 May 2002,
Osborne v Police HC DUN CRI-2008-412-32 6 August 2008 suggest a

starting point of between two and three years for this offending
on a stand alone
basis. I adopt a starting point for it of one and a half years.


[16]     Those starting points, added together,
give a total starting point for your
offending of thirteen years.      I must stand back and assess whether that is an
appropriate
reflection of the totality of your offending. I must have regard to the
totality of your offending, and not produce a sentence which
is out of line with that
appropriate to reflect that totality. In my view, a starting point at that level would be,
to some extent
at least, excessive. The attacks on each of your victims was serious in
itself, but this must be seen in the context that it was
effectively one incident of
lashing out in rage at three different victims with a fourth person involved in the
incident in disarming
you. I consider that a total starting point of 12 and a half years
more properly reflects the totality of the offending and that
is the starting point that I
adopt.


[17]     From that starting point, I must make an adjustment to reflect personal
factors. There
are no aggravating personal factors. I find two significant mitigating
factors. The first is your guilty plea. That was entered virtually
immediately. You
are entitled to a full credit for an early guilty plea and I allow four years for that.
The second mitigating feature,
which I find, is your personal circumstances at the
time of this offending. As I have said this offending was completely out of character
for you. It represents a loss of control at an extreme low point in your life when a
number of personal and work circumstances had
combined to make you extremely
vulnerable at a personal level. That does not excuse your actions in any way. But it
is a factor which
needs to be taken into account as reducing the need for deterrence
or denunciation in the sentence to be imposed. I allow a one year
deduction on that
account. That results in a total deduction of five years from the starting point which
I have identified as appropriate.
That leaves a final sentence of seven and a half
years and that is the sentence which I intend to impose.


[18]     Counsel for
the Crown submits that a minimum non-parole period should be
imposed. Your counsel submits that that is not required. I have reached
the view
that a minimum non-parole period should not be imposed. Such period may be
imposed if the Court is satisfied that the normal
minimum non-parole period is

insufficient for the purpose of holding you accountable for the harm done to the
victims and the community,
denouncing your conduct, deterring you or others from
committing the same or a similar offence, and protecting the community from
you.
Of those, I consider that only the first could justify the imposition of a higher
minimum period in your case. I do not consider
that the factors of denunciation and
deterrence are so significant as to call for an adjustment to the usual minimum non-
parole
period. I take the view that your offending did result from your having been
overwhelmed by the circumstances which you faced and
you having reacted in a way
which you would not have otherwise have done. The harm to your victims has been
reflected in the individual starting
points which I have considered in the starting
point I adopted. I consider that that adequately reflects the harm to the victims
and
that no addition to the minimum non-parole period is required on that account and I
do not impose one. I should make it clear
that that does not mean that you will be
released at the end of the normal minimum non-parole period. The risk that you
pose at that
stage will have to be assessed. That is a matter which will be better able
to be assessed at that point and the Parole Board will
then be better able to assess
whether the view which I have taken, that this was the result of a loss of self control
in extreme
circumstances unlikely to be repeated, is a proper assessment at that time.


[19]   So you will be sentenced to the following:


       (a)     On the count of attempted murder, you are sentenced to a term of
               seven and a half years imprisonment.


       (b)     On the count of aggravated assault you are sentenced to one and a half
               years.


       (c)     On
the count of assault with intent to injure you are sentenced to one
               and a half years.


       (d)     On the count
of injuring with intent to injure you are sentenced to one
               year.

[20]   All of those terms are to be served concurrently.
So that is an effective
sentence of seven and a half years.




                                                            "A D
MacKenzie J"