R v Nansen HC Wellington CRI-2010-085-6668 [2011] NZHC 1242 (2 September 2011)

Last Updated: 30 March 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2010-085-6668}

THE QUEEN

v

JOSEPH KOKI NANSEN

Hearing: 2 September 2011

Counsel: G A Kelly for Crown

I M Antunovic for Prisoner

Judgment: 2 September 2011

_{SENTENCING NOTES OF DOBSON J}

[1] Mr Nansen, you are appearing for sentence today on one count of wounding with intent to cause grievous bodily harm and one count of contravention of a protection order. You have pleaded guilty to those counts at a callover in this Court on 27 June 2011.

The offending

[2] As to the circumstances of your offending, on 21 October last year you went to the home of your former partner, Ms Price. The two of you are parents of an eight year old daughter who lives with Ms Price. It is apparent from everything I have read that you are still very fond of your daughter and are keen to maintain a fatherly relationship with her. However, your relationship with Ms Price has deteriorated to

_{the extent that on 19 August this year, you became the subject of a temporary}

R v NANSEN HC WN CRI-2010-085-6668 2 September 2011

protection order with respect to her. Two conditions of that order were that you were not to physically abuse Ms Price, nor enter land occupied by her. However, there does seem to have been a degree of contact continuing between the two of you despite the protection order being in place.

[3] When you arrived at her home on 21 October 2010, I am advised that you were heavily under the influence of drugs. When you approached Ms Price, she had only just arrived home and was walking between her front door and the car port. You accused her of stealing your friends. In an attempt to protect herself, Ms Price returned to her car and sat in the driver’s seat. You followed her and stood at the driver’s door so she could not close the door and leave. You were swearing and threatening her. You exposed the blade of a knife that was in a bag you were carrying. Upon seeing that, Ms Price attempted to call 111 for help. When you saw her do that, you snatched the phone and snapped it in half. You then lunged at her with your knife and began attacking her with the knife.

[4] Ms Price says that the attack lasted a number of minutes. A neighbour came to her aid, but you continued your attack. You only stopped once two further members of the public came to help her. You ran from the scene, and were apprehended hiding in a property some distance away. The next day, the Police discovered the knife you had used, along the route you took away from Ms Price’s property. And both counsel have referred this morning to the photographs which show both the size of the knife and the location where it was retrieved.

[5] In the attack, Ms Price suffered scratches to her face and neck, a cut and bruising on her right cheek, lacerations to the back of her neck, cuts to her left hand and bruising to her arms.

[6] At the time of the pre-sentence report, the writer records that you had attempted to shift at least part of the blame to Ms Price. But as I have discussed with your counsel this morning, I accept that your stance has moved from there and you now assume full responsibility for what was a very serious and violent attack.

Pre-sentence report

[7] I have read all the reports prepared by the Department of Corrections. Those record that whilst you acknowledge the offending, you seek to minimise your involvement. Again, that is something from which you appear to have moved on by this morning, and I do accept that the report writers also refer to there being remorse for your actions.

[8] The pre-sentence report also records that you were unemployed at the time of your offending and have struggled to hold down a job for most of your adult life. It seems that this is mainly due to your drug addictions, which continue. Ms Price shared your drug use, and this appears to be a central part of your relationship. However, you have said that drugs were not a central part of your offending and that you are not a violent person. Mr Antunovic has made the point that in the relatively lengthy domestic relationship with Ms Price, there are no previous reported incidents of violence.

[9] The alcohol and drug assessment on you details a history of substance abuse. But on a more positive note, it does record that you have shown some willingness to address your anger and drug use, and that is something that will be pursued by the authorities in prison.

[10] A sentence of imprisonment is recommended and you are assessed as being at a moderate risk of re-offending.

Victim impact statement

[11] I have also read the statement made from Ms Price. She records the effects of your offending on her, including the financial, physical, psychological and emotional impact. She describes the regular traumatic flash-backs to the incident, which arise from numerous triggers, as well as her and her daughter’s concerns for the future with regard to their relationships with you. There has been a serious impact on your victim, and that is on-going.

Approach on sentence

[12] Now, in imposing your sentence, I have to be guided, first, by the Sentencing Act. Under that Act, the Court is directed by the sentencing purposes and principles contained in ss 7 and 8. They require imposition of a sentence that will deter you and others from committing similar offences in the future and hold you accountable for your actions, but also require the Court to impose the least restrictive outcome that is appropriate in the circumstances and to assist in your rehabilitation.

[13] In settling on the appropriate sentence, I must first identify a starting point for your offending. That is arrived at by considering the aggravating and mitigating features of your offending in the sense of relatively how bad this case of wounding was. I will also look at decisions of this Court and the Court of Appeal in similar cases, and from the starting point, I will then consider aggravating and mitigating features that are personal to you.

Sentencing indication given

[14] But before addressing this sequence of considerations, I should record that you have previously been given a sentencing indication in relation to these convictions by a Judge in the District Court. I issued a Minute earlier this week to clarify whether you claimed to rely on that sentencing indication in pleading guilty in this Court. I have had the indication from Mr Antunovic, as you heard, that you accept I am free to consider an appropriate sentence, without being obliged to respect the sentencing indication previously given to you.

Starting point

[15] Now, as to a starting point, the Court of Appeal’s decision in R v Taueki1 is the starting point for sentences on convictions for injuring with intent to cause grievous bodily harm.2 In Taueki, the Court of Appeal identified three categories of

_{offending. Mr Antunovic and the Crown agree that your offending fits within the}

1 _{R v Taueki [2005] 3 NZLR 372.}

2 R v Gray [2009] NZCA 31.

second band: offending which contains two or three of the aggravating factors identified by the Court of Appeal in Taueki, and I agree with that.

[16] I consider there are four features that are listed in Taueki as being aggravating ones that apply in your case.3 First is the use of weapons. You attacked Ms Price with a knife, which, regardless of your original intention, you had brought to the scene. Second, attacking the head. You attacked Ms Price’s face and neck, and going for that part of the body is treated as aggravating the seriousness of an attack. Third, the vulnerability of the victim. With Ms Price trapped in her car, she was

the very essence of a vulnerable victim. To that extent, she was attacked in circumstances where she had little, if any, ability to defend herself from attack.4 I link with her vulnerability the fact that the offending involved the breach of a protection order, and that is also aggravating.5 Fourth, pre-meditation. As I have said, you arrived at Ms Price’s home in an agitated state. Whilst I cannot be satisfied that you went there with the intention to use your knife on Ms Price, I consider your motives in going to Ms Price’s home were not entirely pure.

[17] In Taueki, the Court stated that for this middle band, an appropriate starting point will generally be between five and 10 years’ imprisonment.

Comparable cases

[18] Now, in considering just what the starting point should be in this case, I have considered the sentences ordered in other cases of similar offending. The Crown has referred me to the decisions in R v Heta6 and Kauwhata v R.7

[19] In Heta, a starting point of eight years nine months’ imprisonment was adopted for a conviction for wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm. An end sentence of eight years’ was imposed. The offender had been in an on and off relationship with the victim in

_{that case for 28 years. The offender punched the victim in the face and stabbed her}

3 _{See Taueki at [31].}

4 _{See Graham v R [2011] NZCA 131 at [14].}

5 _{Taueki at [31](i).}

6 _{R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011.}

7 Kauwhata v R [2010] NZCA 451.

in the back. The Judge considered aggravating factors to be the extreme violence, pre-meditation, the victim suffering serious injury, the use of a knife, attack to the victim’s head and the victim was vulnerable because she was taken by surprise from behind.

[20] In Kauwhata v R, which is the case both counsel have mentioned this morning, the Court of Appeal allowed an appeal against a sentence of five and a half years’ imprisonment. There, the appellant had spoken to his neighbour a number of times about his desire to kill the victim, his wife. He invited her in to his home, but then, without warning, grabbed her from behind, punched her to the floor and stabbed her with a knife. The victim suffered three cuts to her right shoulder that required stitches, small cuts to her left hand, bruising to her chest, face and arms, she suffered a loose top tooth and a sore neck. She was lucky not to sustain more serious injury to her neck, the knife being deflected on several occasions by a necklace that she was wearing.

[21] The Court of Appeal said that the Judge’s starting point of eight years and three months was too high. The starting point open to the Judge was seven years. The Court of Appeal was also of the view that a minimum period of imprisonment was unnecessary. The appellant in that case had few previous convictions and no history of domestic violence, as well as having entered a guilty plea and made a full admission. These factors led the Court of Appeal to substitute a sentence of four years and eight months on the grievous bodily harm conviction.

[22] Now, Mr Antunovic’s submissions did not rely on any cases beyond Taueki. He has argued for a starting point in the region of six years, and this morning has likened the reasoning I should adopt to that of the Court of Appeal in Kauwhata. The Crown has suggested a starting point in the range of seven to eight years.

[23] I note the statement of the Court of Appeal in R v Taueki:8

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band

8 At [39].

would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[24] Mr Nansen, it is urged for you that you have realistically assessed the seriousness and impact of your offending since it occurred. If indeed you have done so, and I am now satisfied that you have, you must appreciate that this attack with a weapon was serious, and that it risked inflicting substantially more serious damage on Ms Price than occurred. You should also appreciate that the circumstances in which you trapped her in her car and prolonged the attack certainly justify the on-going fears that she has referred to in the victim impact statement.

[25] Having said that, the injuries were not as serious as they might have been. Ms Kelly has said this morning that is a matter of luck. But in the end I have to have regard to the injuries that were inflicted and that justifies some acknowledgement that you may not have been as determined to inflict serious harm as the circumstances otherwise suggest.

[26] I have identified three clear aggravating factors, along with a measure of pre-meditation. You used a weapon and attacked Ms Price’s head area. In relative terms, I treat your offending as a shade less serious than Kauwhata. I acknowledge some cogent points made this morning by Ms Kelly that indeed it should be seen as more serious, but I am not persuaded in the end that that is so.

[27] Having reflected on all these factors, I accordingly adopt a starting point of six years and six months.

End point

[28] From that starting point, I next consider the aggravating and mitigating factors that are personal to you. The Crown acknowledges that there are no factors personal to you which require an uplift, and I agree. You have 12 previous convictions but the only one which is relevant to this offending is for male assaults female in May 1992, and due to its age I disregard that. You have not previously been sentenced to imprisonment.

[29] As to factors which reduce your sentence, you pleaded guilty at the second callover. You are entitled to a substantial discount in that respect, and it can be up to

25 per cent.9 I must stand back and consider, in the circumstances of this case, what

reduction is justified.10 That consideration includes weighing the strength of the prosecution’s case. Here, that case was undoubtedly strong. By pleading when you did, you did save the State considerable expense and time in prosecuting you, and of course Ms Price avoids the trauma of a trial. Further, I understand you wanted to work through the prospect of a possible defence of insanity. Your pleas were made some time after the sentencing indication given by Judge Behrens.

[30] Apart from the reports I have mentioned earlier, I have also read the report from Mr Tim Byrne, the counsellor with whom you completed 12 sessions in a Family Court-approved programme on Living Without Violence. That is very supportive, suggests that you are genuinely remorseful, and the counsellor would support leniency for you. In the context of the extent of discount that is available for the guilty plea, that and the other factors I have reviewed persuades me that you should be granted the full 25 per cent discount, and I do so.

[31] I therefore settle on an end sentence of four years and 10 months’ imprisonment. In doing the maths on the number of months from the starting point, you get the advantage of a rounding down. In coming to that end sentence, I have taken into consideration your breach of protection order. I therefore do not consider a further uplift is justified.

[32] I accordingly sentence you, concurrently, to a sentence of four months’

_{imprisonment on that less serious conviction.}

9 _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].}

10 At [74].

Minimum period of imprisonment

[33] Now the Crown has also urged me to impose a minimum period of imprisonment which can arise under s 86(2) of the Sentencing Act. I note the Court of Appeal’s statement in Taueki:11

In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.

[34] However, I am not going to order a minimum period in your case. As the Court of Appeal commented in Kauwhata, the relatively few previous relevant convictions, the lack of history of domestic violence and the fact that you entered a guilty plea relatively early, suggest that a minimum period is not required in your case.

Three strikes

[35] Mr Nansen, that brings me to the final part of this sentencing. The conviction for wounding with intent to cause grievous bodily harm is a serious violent offence as defined under s 86A of the Sentencing Act. By virtue of your age at the time, you qualify under what has become known as the three strikes rule. I am therefore required to give you a warning of the consequences of another serious violence conviction. And you will also, after the sentencing this morning, be given a written form of this warning

[36] The first consequence is that if you are convicted of any one or more serious violent offences, other than murder, which is or are committed after this warning, and a judge imposes a sentence of imprisonment, then you must serve that sentence without parole or early release.

[37] The second consequence is that if you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment without parole

11 At [57].

unless it would be manifestly unjust to do so. In that event, the judge must sentence you to a minimum term of imprisonment.

[38] That is the end of the warning I am required to give and the end of my sentencing.

[39] You may stand down.

Dobson J

Solicitors/Counsel:

Crown Solicitor, Wellington

I M Antunovic, Wellington