Setter v Police [2012] NZHC 1834 (25 July 2012)

Last Updated: 1 August 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-31 [2012] NZHC 1834

BETWEEN JASON PAUL SETTER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 17 and 25 July 2012

Counsel: R Vigor-Brown for Appellant

L L Owen for Respondent

Judgment: 25 July 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

R Vigor-Brown, Rotorua

_{Crown Solicitor, Rotorua}

SETTER V NEW ZEALAND POLICE HC ROT CRI 2012-463-31 [25 July 2012]

The appeal

[1] Mr Setter seeks an extension of time to appeal and, if granted, to appeal against an effective sentence of two years and 11 months imprisonment on charges arising out of incidents of domestic violence that occurred on 16 and 17 December

2011.

Facts

[2] Mr Setter lived in a de facto relationship with his female partner (the complainant) and her young son. They had been in a relationship for some four years or so. On 16 December 2011, there was tension within the home, following an argument between Mr Setter and the complainant’s son. As a result, several “heated” text messages were exchanged between Mr Setter’s partner, the complainant and Mr Setter that day.

[3] At about 11.30pm on 16 December 2011, Mr Setter arrived home in an intoxicated state. The complainant was at that stage asleep on a fold-out bed in the lounge.

[4] Mr Setter approached her. He abused her verbally while she lay on the bed. He demanded that she sign the tenancy of the house over to him. The complainant attempted to get her telephone to call for help. However, Mr Setter, forcibly, took it from her. When the complainant tried to retrieve the telephone, Mr Setter took her with both hands, pushed her and caused her to fall back onto the floor where she hit her head against the corner of the couch. This incident gave rise to a charge of male assaults female albeit that that charge was laid on a representative basis and also covered other aspects of the facts to which I shall refer.

[5] Mr Setter then threatened to “smash [the complainant’s] head in”. He continued to offer verbal abuse. Finally, she ran into the kitchen, picked up her keys and went through the front door towards a friend’s house to seek help. Mr Setter was able to stop her, while she was running across the front lawn. Using both hands, he

grabbed her by the waist and threw her to the ground. The complainant later retrieved her telephone, ran down the street and called the Police. Mr Setter left the area before the Police arrived and could not at that stage be located.

[6] At approximately 6.30am on 17 December 2011, Mr Setter returned to the house and found the complainant asleep on the fold-out bed. He smashed a glass pane in the door to access a sunroom area of the house and then reached through the broken glass to enter the lounge. That was done after going through a second door, which had been locked with a security chain in place. Mr Setter kicked the door down with enough force to break it, so that he could get inside. This event gave rise to a charge of wilful damage of property.

[7] When she heard the door break, the complainant knew that Mr Setter had returned. Once again she tried to get her telephone to call the Police. Before she could do so, he was on top of her and began another verbal tirade. Eventually, he grabbed the end of the fold-out bed and forcibly folded it into the sofa with the complainant inside. He applied his full weight to trap the complainant inside the bed. Mr Setter then picked up the entire sofa, flipping it over with the complainant inside. After a mattress landed on top of the complainant, Mr Setter straddled her and abused her once again. At one stage, he held her head tightly and a clump of hair was pulled from her scalp.

[8] While the complainant was seeking to protect her head and face with her arms, Mr Setter stood over her and pulled her from the ground. He then stomped on the her chest, slamming her back into the floor and pulling her hair from his hands. While wearing heavy steel-cap work boots, Mr Setter kicked the complainant in her torso while she was lying on the ground. Her 12 year old son came from the bedroom on crutches and witnessed what occurred. Mr Setter picked up a single seated lounge chair, held it above his head and threatened to throw it at the boy. That and some later events led to a charge of threatening to do grievous bodily harm.

[9] As a result of the offences, the medical evidence indicates the complainant suffered a fracture to the front end of the right second rib and was prescribed pain relief medication. The photographs show, graphically, bruising which also occurred.

Initially, Mr Setter denied the allegations but, ultimately, pleaded guilty to the charges brought. The late pleas of guilty are explained later, in circumstances that put the initial denial of the charges into sharp relief.

Sentencing in the District Court

[10] Mr Setter was sentenced in the District Court at Taupo, on 13 April 2012, by Judge Weir. The Judge recorded that belated pleas of guilty were entered on the morning of the intended hearing. It appears that Mr Setter had previously offered to plead guilty to a lesser charge of injuring with intent to injure, rather than injuring with intent to do grievous bodily harm. The charge was amended to injuring with intent to injure on the morning of the intended hearing, following which the pleas of guilty were entered. It is clear that the District Court Judge was unaware of those steps at the time that he sentenced.

[11] After rehearsing the facts, Judge Weir referred to the sentencing guidelines for charges of injuring with intent to injure, set out in the Court of Appeal’s decision in R v Harris.[1] Delivering the judgment of the Court, Ronald Young J said:

[9] It should also be kept in mind that in Taueki [[2005] 3 NZLR 372 (CA)]

this Court saw the guidelines applying in this way:

[9] We propose to deal with the guidelines for sentences for serious violent offending at the outset, before dealing with the present appeals. We focus our attention on offences under s 188(1) of the Crimes Act (we will refer to these as “GHB offences” or “GHB offending”), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.

[10] An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:

• Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

• Band two: where the injuries are moderate, sentences of up

to two years’ imprisonment can be justified;

• Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

[12] Judge Weir considered that the offending fell into Band three of Harris. The actual starting point for sentence is intended to reflect particular aggravating and mitigating factors relating to the offence. The Judge chose a starting point of two years six months, half of the maximum penalty, saying:[2]

[26] In my view, having regard to all of those factors and taking into account a number of cases that have been referred to me and a number of other cases that I have dealt with relatively recently in this area, including Clement v Police (HC Christchurch, CRI-2009-409-000101, 9 July 2009, Panckhurst J) and R v Newton (HC Auckland, CRI-2010-092-2216, 17

March 2011, Hansen J) and taking account of what was said in Harris as well, that the starting point for you should be no less than two and a half

years imprisonment. There will need to be an uplift for six months to take account of your previous history in this area, making a total of three years

imprisonment. I reduce that by three months to one of two years, nine months to make some allowance for the plea of guilty. That is on the lead

charge.

[27] I add to that, two months to take account of your outstanding fines which are now remitted. The end sentence therefore on the lead charge will be one of two years and 11 months imprisonment.

Grounds of appeal

[13] Although the appeal traversed a number of issues, the central point concerns the credit given for the guilty pleas. Mr Vigor-Brown submitted, on behalf of Mr Setter, that the credit was too low.

[14] Mr Vigor-Brown referred me to a letter that had been prepared by counsel who appeared for Mr Setter in the District Court, Mr Malcolm. It appears that the information conveyed in that letter was not made available to Judge Weir at

sentencing, at the time that he considered what credit should be given for the guilty pleas.

[15] The possibility of a reduction of the lead charge from grievous bodily harm to injuring with intent to injure was raised at a meeting with a sergeant at the Taupo police station in mid January 2012. At that stage, Mr Setter had been remanded in custody without seeking bail. The issue was mentioned further at a list Court in Taupo and at a subsequent status hearing. Counsel for Mr Setter had made it clear that his client had not sought bail because the only issue was whether the requisite intention for a grievous bodily harm charge could be proved.

[16] The prosecution did not, however, elect to reduce the charge until shortly before the defended hearing, on the day on which the pleas were entered. Mr Vigor- Brown, for Mr Setter, submitted that, in terms of the Supreme Court’s judgment in Hessell v R,[3] a credit of more than the three months allowed by Judge Weir was required.

[17] In determining an appeal against sentence, in these circumstances, I must evaluate whether the sentence imposed was clearly excessive. That is not done by considering component parts of the sentence in isolation but by considering the totality of the sentence in light of any errors that may have been made in its calculation. An issue that assumes some importance in this case is the starting point chosen by the Judge of two years six months imprisonment. Having regard to the Harris criteria, that starting point could be considered generous.

[18] In terms of R v Taueki, there were, at least, three aggravating factors; first, the vulnerability of the victim in the circumstances in which she found herself when Mr Setter entered the home on each occasion; second, the multiple attacks over a relatively prolonged period; third, the extent of violence and harm caused both physically and psychologically to the victim. On that basis I would have thought a starting point in the region of three years could have been more appropriate.

[19] The late entry of the guilty pleas did mean that the victim had to prepare herself for the ordeal of giving evidence at a defended hearing. Her fears would not have been assuaged until the morning of the trial. Nevertheless, in light of the information to which I have referred from Mr Setter’s counsel, those concerns did not stem from the actions of Mr Setter. Rather, they resulted from the late decision of the prosecution to reduce the charge.

[20] In determining credits to be given for guilty pleas, Hessell makes it clear that a sentencing Judge has a relatively wide discretion. McGrath J, for the Supreme Court, said:[4]

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

[75] The reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflects the fact that remorse is dealt with separately. Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.

[76] At the other end of the range, there may be cases in which there are significant benefits from a plea, warranting a sentence reduction, even though the plea comes very late. After a trial has commenced some real justification should be required before any allowance is made but there are from time to time instances where an allowance is justified.

[77] All these considerations call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[21] In this case I am satisfied that if the lead charge had been amended before the date fixed for the defended hearing it is likely that Mr Setter would have pleaded guilty. That would, necessarily, have resulted in a greater credit. The question is whether the credit that should be allowed should take account also of the higher starting point that, in my view, ought to have been taken.

[22] On reflection, I am satisfied that some additional credit should be given but, to reach a sentence that reflects the totality of the offending and also has regard to the remission of fines, I propose to adjust the sentence by making the sentence of two months imprisonment on remission of the fines concurrent with other sentences. That means that the end sentence becomes one of two years nine months imprisonment.

[23] That allows an extra credit of two months for the guilty pleas to reflect the matters to which Mr Vigor-Brown has referred in submissions. If one were to take a starting point of three years imprisonment and add to that six months for aggravating factors personal to the offender, one would reach an end sentence of two years 10 months imprisonment by applying a credit of 20%; or a period of two years eight months imprisonment by applying a credit of 25%. In my view, an end sentence of two years nine months imprisonment is adequate to reflect the offending.

Result

[24] For those reasons, the application to extend the time to appeal is granted. The appeal is allowed to the extent of making the sentence of two months imprisonment for remission of the fines concurrent with other sentences, rather than cumulative. That means that the effective term of imprisonment imposed is one of two years and

_{nine months.}

P R Heath J

---

[1] R v Harris [2008] NZCA 528.

[2] New Zealand Police v Setter DC Taupo CRI 2011-069-2178, 13 April 2012.

[3] Hessell v R [2011] 1 NZLR 607 (SC).

[4] Ibid, at paras [74]–[77].