R v Wallace HC Auckland CRI-2010-092-2879 [2011] NZHC 679 (30 June 2011)

Last Updated: 20 July 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-092-2879}

THE QUEEN

v

JAY MAUI WALLACE

Counsel: B D Tantrum for Crown

Prisoner in person

M E Goodwin - Amicus Curiae

Judgment: 30 June 2011

_{SENTENCING NOTES OF BREWER J}

SOLICITORS

Meredith Connell (Auckland) for Crown

(copy to Mr Wallace in person)

COUNSEL Matthew Goodwin

R V WALLACE HC AK CRI-2010-092-2879 30 June 2011

Introduction

[1] Mr Wallace, the jury found you guilty of offences of violence arising from two incidents. My task now is to sentence you for that offending.

Facts

[2] I can set out the relevant facts briefly.

[3] The first incident occurred on 9 February 2010. You became angry with your partner for reasons relating to her giving someone a lift in her car. You punched her in the head while she was sitting in the driver’s seat. This caused her to have a black eye and fractures through the bones surrounding her right eye and through the upper cheek.

[4] For this action you were found guilty of injuring your partner with intent to

injure her. The maximum penalty for this offence is five years’ imprisonment.

[5] The second incident occurred on 25 February 2010. It again involved violence against your partner, this time at your home. You became angry with her over phone calls and text messages she had received. You punched her about the chest and kicked her repeatedly in the ribs. In this attack your partner sustained a fractured right rib.

[6] For this action you were found guilty of injuring your partner with intent to injure her. As with count 1, the maximum penalty for this offence is five years’ imprisonment.

[7] During the incident the jury found that you loaded a sawn-off shotgun and threatened to kill your partner with it.

[8] For this action you were found guilty of threatening to kill your partner. The

maximum penalty for this offence is seven years’ imprisonment.

[9] During the incident your partner tried to escape. However, you grabbed her by the hair and dragged her back into the bedroom. Once there you continued to attack her. You beat her by punching her all over her body, namely on her front and chest, her face, and the side of her face. Your partner was later found to have a new fracture through her left nasal bone, bleeding in the left eye, and the left side of her face was bruised, swollen, red and tender.

[10] In respect of this part of the attack you were found guilty of assaulting your partner with intent to injure her. The maximum penalty for this offence is three years’ imprisonment.

[11] The Police were called. When the Armed Offenders Squad arrived you had the sawn-off shotgun down the front of your pants. You did not have any ammunition on you but during the search of the house a number of shotgun cartridges were found. In addition, a Remington shotgun was found in a hall cupboard.

[12] In respect of these matters the jury found you guilty of two counts of possession of a firearm (each of which carries a maximum penalty of four years’ imprisonment) and, in relation to four of the shotgun cartridges, possession of explosives (which also carries a maximum penalty of four years’ imprisonment).

[13] The jury found you not guilty of assaulting your partner using the sawn-off shotgun as a weapon.

[14] I can say at this point, Mr Wallace, that I am not going to put any weight on the finding of the Remington shotgun. Technically you were in possession of it and the jury had to bring in a verdict of guilty. But other men were using the house and there was nothing to show that you had actual possession of the Remington shotgun.

Method of sentencing

[15] To decide your sentence I have to adopt a two-stage process. The first step is to consider how serious the offending itself was, without considering matters relating

to you personally. In doing that I have to look at other decided cases which are similar to yours. I also have to take into account the established sentencing principles. There is a need to denounce your offending and to hold you accountable to the community. There must be an element of deterrence against both future offending by you and by others. And I have to look to the protection of the public. I also have to take into account how the first incident should add, overall, to what you did in the second incident.

[16] The first stage results in a starting point for your sentence which takes into account the aggravating and mitigating features of the offending itself. The second stage is to look at your particular circumstances to see whether the actual sentence should be higher or lower than the starting point.

[17] I have to take into account what Mr Tantrum has submitted for the Crown and what Mr Goodwin has submitted to me in writing as Amicus Curiae. You have spoken to me this morning at length about my constitutional jurisdiction to sentence you. I think you know by now that that is an argument which I cannot enter into and to take it further you will have to go again to higher Courts than mine.

[18] The Crown submits that the starting point should be in the region of four years’ imprisonment. In addition, the Crown wants me to treat your offences under the Arms Act as being cumulative in effect. The Crown submits that this should add two years to the starting point.

[19] In Mr Goodwin’s submission, an appropriate starting point reflecting the totality of your offending is three to three-and-a-half years’ imprisonment. Mr Goodwin opposes the Crown’s submission that cumulative sentences are appropriate for the firearms offending and he highlights the need to avoid double counting the presence of firearms. The presence and use of the sawn-off shotgun are already aggravating features of the threatening to kill charge. Mr Goodwin submits that six months would be an appropriate uplift.

Starting point

[20] I have decided to regard the offending on 9 February 2010 as being separate to the offending which occurred on 25 February 2010. I intend, first, to set a starting point that reflects the totality of your offending on 25 February 2010 and then I will consider as a separate cumulative sentence the 9 February 2010 offending.

[21] I take as the lead offence count 2 in the indictment, the injuring with intent to injure. Overall, your offending on 25 February involved a number of the aggravating factors that are discussed in s 9 of the Sentencing Act and in R v Taueki.1

I take as the most serious of these:

(a) The level of violence against your partner;

(b) The resulting serious injuries which required hospital treatment; (c) The vulnerability of your partner in terms of size and strength; (d) The detention of your partner after she attempted to flee;

(e) The presence of a loaded firearm during the offending and its use in the threats to kill.

[22] In my view your offending falls within the most serious of its type, warranting a starting point within band 3 of the Court of Appeal’s guideline in R v Harris.2 I have had regard to the cases referred to me by the Crown. In particular, and for the record, I have had regard to R v Winklemann3 and Harrison v

_Police.4 _{I have also considered R v Puke}5 _{and Knight v Police.}6

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

2 _{R v Harris [2008] NZCA 528.}

3 _{R v Winklemann [2010] NZCA 215.}

4 _{Harrison v Police HC Hamilton CRI-2007-419-101, 27 September 2007, Randerson J.}

5 _{R v Puke [2009] NZCA 582.}

6 Knight v Police HC Wellington CRI-2010-485-59, 22 July 2010, Dobson J.

[23] I have to say that, unlike in the cases cited, there is here the additional serious aggravating factor of threatening to kill with a loaded firearm. That, in my view, increases the seriousness of this offending beyond those other cases.

[24] Had that factor not been present, you would have been facing a starting point in the vicinity of three years three months’ imprisonment. Threatening to kill is a serious charge, carrying a maximum penalty of seven years’ imprisonment, and it is aggravated further when combined with the use of a loaded firearm. Taking that into account, I impose a starting point of four years’ imprisonment for the 25 February

2010 offending.

[25] I must also set a starting point in relation to the 9 February 2010 offending. That offending is less serious and in my view would attract a starting point of around one years’ imprisonment, to be served cumulatively with the other offending.

[26] Because I have treated the Arms Act offending as aggravating the overall starting point, I have decided against imposing a cumulative sentence on those charges.

[27] I must now determine whether the provisional starting point of five years’ imprisonment would “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.7 This is a difficult exercise when faced with more than one incident, the second of which went beyond manual, physical violence and introduced a loaded sawn-off shotgun in truly terrifying circumstances. However, I am minded to consider Mr Goodwin’s submissions and I

will give a small reduction of three months in case I have overstated the significance of the presence of the sawn-off shotgun. That results in a final starting point of four years nine months’ imprisonment.

Factors which are personal to you

[28] I now turn to consider your personal factors. You have some 66 previous convictions. I consider only four of those to be relevant to the present sentencing.

7 Sentencing Act 2002, s 85(2).

They are wounding with intent to injure (2005), threatening to kill (2005), male assaults female (2002), and unlawful possession of a firearm (2001). Of these convictions I am particularly concerned with the 2005 convictions since they occurred in circumstances which are very similar to the circumstances which have brought you to the Court today. You received a jail sentence of three-and-a-half years for that offending.

[29] I also take into account that your offending on this occasion was at a time when you were on bail for methamphetamine and cannabis related offences.

[30] There are no mitigating factors personal to you. You have accepted responsibility for only a portion of your offending but not to an extent which would account for the injuries that your partner sustained. You have said this morning to me:

In regards to my ex partner and I on the 24th February 2010, every couples have their ups and downs in relationships. All I done was pushed Marama Maaka around in my room and punched her a few times. That’s all I done in regards to relationship matters, between Marama and I.

[31] You also say that you and Marama are still friends. You say that you have shown remorse and apologised to her with all your heart and you wish peace be upon her.

[32] Mr Wallace, you should know that Ms Maaka’s victim impact statement makes it plain that she is still very much affected by what you did to her. She has flashbacks and continuing anxiety attacks. She is scared of you and worried about what you will do when you are released. She does not feel safe. The pre-sentence report says that you have not accepted responsibility for your offending and that you minimise the extent of your offending and try to shift the blame. This morning you have told me that you deny that. You say that you have accepted responsibility for what you did and you have said, and I accept, that if you could “turn the past back” then you would.

[33] As a result of your previous history, I increase the starting point by six months’ imprisonment, which takes the final sentence to five years three months’ imprisonment.

Minimum period of imprisonment

[34] The Crown seeks a minimum non parole period of 50%. Mr Goodwin has submitted that this case does not warrant a minimum period of imprisonment and that parole decisions are best left to the Parole Board.

[35] Section 86 of the Sentencing Act governs the imposition of a minimum period of imprisonment. It is imposed if the Court is satisfied that the normal one- third non parole period would be insufficient for all of the purposes listed in the section. Of those, I think the most significant in your case is the purpose of protecting the community from you.

[36] In the end, and by a very fine margin, I have decided to leave your release in the hands of the Parole Board. I do that principally for two reasons. The first is that within your own mind you were prepared to take responsibility for some of the offending of which you were found guilty by the jury. You were prepared to apologise. You have been on remand for 16 months and you completed an anger management course on 21 December 2010. That is a sign of progress. The second factor is that there was a gap of five years between this offending and your previous similar offending.

[37] Mr Wallace, I should say to you that you are at a stage where any further violent offending will mean that no Court will give you any leniency. If you demonstrate that you are not safe to be in the community then you can expect to spend a far greater period in prison than that which I am now going to impose:

(a) On count 1, I sentence you to one years’ imprisonment;

(b) On count 2, I sentence you to four years three months’ imprisonment,

to be served cumulatively with the sentence imposed on count 1;

(c) On count 4 in the indictment (threatening to kill), I sentence you to

two years’ imprisonment;

(d) On count 5 in the indictment (assault with intent to injure), I sentence

you to one years’ imprisonment;

(e) On count 6 in the indictment (possession of the sawn-off shotgun), I

sentence you to one years’ imprisonment;

(f) On count 7 in the indictment (possession of the Remington shotgun), you are convicted and discharged;

(g) On count 8 in the indictment (possession of the shotgun cartridges), I

sentence you to three months’ imprisonment.

[38] The sentences on counts 2, 4, 5, 6 and 8 are to be served concurrently with each other. Your total sentence, therefore, is five years three months’ imprisonment.

_{Stand down.}

Brewer J