R v Gash [2012] NZHC 3039 (15 November 2012)

Last Updated: 21 November 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-7799 [2012] NZHC 3039

THE QUEEN

v

PHILIP JOHN GASH

Hearing: 15 November 2012

Counsel: D J Orchard for Crown

A J McKenzie and R Ashton for Prisoner

Sentence: 15 November 2012

_{SENTENCING NOTES OF THE HON JUSTICE KÓS}

[1] Mr Gash, you are before me today for sentence on five counts: (a) wounding with intent to cause grievous bodily harm;1 (b) threatening to kill or do grievous bodily harm;2

_{(c) aggravated burglary;}3

_{(d) assault with intent to injure;}4 _and

1 Crimes Act 1961, s 188(1).

2 Crimes Act 1961, s 306(1).

3 Crimes Act 1961, s 232(1)(a).

4 _{Crimes Act 1961, s193.}

R v GASH HC CHCH CRI 2011-009-7799 [15 November 2012]

(e) male assaults female.5

[2] You were found guilty on those counts by a jury in this Court on 18 October

2012. That jury acquitted you of attempted murder. In my respectful view, the jury was entirely right to acquit you on that charge.

Details of offending

[3] Formerly you lived with your wife, Ms Jodi Archbold, at the scene of most of the crimes on which you have been convicted, a house in Riley Crescent, Woolston. Your marriage went sour. You and your wife separated. She took out a protection order. She also took up with another man, a Mr Davies. It is likely on the evidence that you were aware of that. On 9 April 2011 you went to the house at Riley Crescent. As a result a trespass notice was served on you warning you off that property for two years.

Threatening to kill – 16 April 2011

[4] On 16 April 2011 your wife visited you at your flat in Haast Street, Linwood. You tried to persuade her to drop the protection order. She, tried to persuade you to complete the Stop Violence programme that you were supposed to have completed as part of a sentence of supervision imposed for an earlier assault on your wife in

2009. You demurred. You told your wife that if she got the police involved again you would “cut her throat, cut her cat’s throat and cut the throat of anyone else who got in the way”.

21 June 2011 trespass

[5] On 21 June 2011 you breached the protection and trespass orders and went on to the property at Riley Crescent. A complaint was laid with the police.

5 Crimes Act 1961, s 194(b).

24 June 2011 incidents

[6] Early in the morning of 24 June 2011 you were apprehended by the police in Woolston. You were arrested for breaching the trespass order on 21 June, as I have described. The police took from you a large knife. You were bailed on condition that you not have any contact with your wife.

[7] You immediately breached that condition. Early that evening you returned to

Riley Crescent.

Aggravated burglary

[8] Your wife and Mr Davies were in a caravan in the driveway of the Riley Crescent house. It was after dinner. They were watching television. There was a hissing noise and the caravan tilted. You had let down one of the tyres. Either manually or using a second knife you had brought with you. Ms Archbold went to the door. You rushed in, knocking her to the caravan floor.

Assault with intent to injure

[9] Inside the caravan you knocked your wife over, threw yourself down on her and hit her face and head with your elbow.

Wounding with intent to cause grievous bodily harm

[10] It is not clear if you realised that Mr Davies was in the caravan when you started to assault your wife. After his initial shock at your entry and assault on Ms Archbold, Mr Davies pulled himself together. He leapt on top of you. He is a much smaller and lighter man than you. It is clear that 18 months ago you were a far more vigorous man than you are now. You now use a wheelchair because you have suffered severe renal failure. Back then you commuted on a pushbike. You even managed to evade police apprehension on one occasion by pedalling off across a public park.

[11] Mr Davies was on top of you. You then flipped him over on to his back. Ms Archbold used that diversion to escape, raise the alarm and call the police. As Mr Davies fought you he felt cold steel down the side of his neck. He says he screamed out loud and lay still. It is to your credit that you did not seize the opportunity presented by his lack of resistance to press home your attack. I am sure that forbearance is one of the reasons why the jury acquitted you on the attempted murder charge.

[12] It turns out that Mr Davies was very lucky. So too were you. You are fortunate Mr Gash that you are not being sentenced today on a manslaughter charge. Had your knife been just a little sharper it would have been a manslaughter charge. Although the long cut caused by your knife went close to Mr Davies’ carotid artery, the cut was not deep. Little real physical harm was caused, and only moderate bleeding ensued. Mr Davies was treated in the hospital Accident and Emergency Department and he was discharged.

Male assaults female

[13] With Mr Davies on his back, bleeding and screaming, you too ran from the caravan. A Ms Carey, who also lived in the house at Riley Crescent, had been attracted to the scene by the noise and by your wife’s cries of alarm. You hit Ms Carey on the head but she was not injured.

[14] So that was your offending. I think it is important that I say three further things about it.

[15] First, I am left in a state of profound uncertainty as to the extent of premeditation on the lead offence, wounding with intent. To the extent that I am as sentencing Judge left uncertain, I will take the factual version most favourable to you. It has not been suggested in the charges you faced that you took the knife to Riley Crescent to use against Ms Archbold. The jury acquitted you of attempted murder of Mr Davies. It is clear by that verdict that the jury did not think you visited Riley Crescent, carrying the second knife, with the intent to murder Mr Davies. Nor, either, that you formed such an intention during the course of the fight in the

caravan. However, the jury did find that you intentionally wounded Mr Davies with a knife and that you intended to cause him really serious harm.

[16] The evidence leaves me with the impression that Mr Davies’ presence in the caravan was probably a surprise to you. Likewise his spirited intervention to aid Ms Archbold, for which I commend him. It follows that you formed the intent to wound in the course of the fight with Mr Davies. A fight that you did not intend to have, but which occurred because Mr Davies came to Ms Archbold’s aid when you were hitting her.

[17] These circumstances, in which you were the aggressor, did not permit of self- defence. But they may be taken into account in assessing the gravity of your offending. In particular, the degree of premeditation associated with it. What happened in the caravan, when you pulled the knife on Mr Davies, can therefore be seen as a moment of madness. There is nothing in your history to suggest that the use of a weapon in this manner was in character.

[18] I do not ignore the fact that you made the threat on 16 April. But I am not inclined to link that event and what happened two and a half months later. Although the threat was made, it was followed by continued amicable contact with your wife, including the night the threat was made, and again a month later when you took a bike ride together. I accept the submission made by your counsel, Mr McKenzie, that by the time of 24 June 2011 that 16 April threat was spent.

[19] Secondly, although the jury has found that, in wounding Mr Davies, you intended to do him really serious harm, it is very much, as I have said, to your credit that when he screamed and lay still, you did not press home your attack. In fact you desisted altogether and attempted, unsuccessfully, to make your escape.

[20] These two mitigating considerations are relevant in assessing how serious on the scale of offending your conduct was. I shall have more to say about that.

[21] Thirdly, however, I do not overlook the fact that these mitigating considerations do not apply to the other most serious offence, aggravated burglary.

The evidence is clear this offence was premeditated, that you brought the knife to the property intending entry into the caravan. The jury’s verdict on that charge means they concluded beyond reasonable doubt that you intended to use the knife if necessary. But I do accept that it was not part of your plan to use that knife against Ms Archbold, and the charges laid in this case confirm that inference. I also accept that it was not your original plan to use it on Mr Davies. It may well be that you had the knife on you to disable the caravan which was about to be towed away.

Impact of your offending

[22] I have received and read the victim impact statements from Mr Davies and Ms Archbold. It is clear that your attack on 24 June 2011 traumatised them. Particularly Mr Davies, who had to be treated in the hospital Accident and Emergency Department for the knife wound to his neck. He had thought he was going to be killed. He has needed, and he continues to need, trauma counselling.

Personal circumstances and pre-sentence report

[23] You, Mr Gash, are now 57 years of age. You have 48 prior convictions, compiled between 1973 and 2009. The most serious is one for robbery, in 1974, for which you received two years’ imprisonment. You received a further sentence of six months’ imprisonment in 2002 for male assaults female and assaulting the police. You have three convictions for male assaults female, and 11 other assault convictions. There are other convictions for threatening behaviour, resisting police and wilful damage.

[24] It is perfectly apparent that you have a serious problem in managing your anger.

[25] That problem is also discussed in the pre-sentence report. The report states that you are somewhat frail, both physically and mentally. You were apparently raised in a good family, and you spent most of your life in Auckland. There you ran a business for 18 years as a commercial diver, cleaning and maintaining yachts for a large clientele. You say you were successful in that business and took great pride in

your integrity and ability to build good working relationships with your clients. Repetitive strain injuries meant you had to abandon that line of work. In more recent years you have been on a sickness benefit. Evidence before me, although not referred to in the report, is that you suffer from chronic renal failure. That appears to be the cause of your current physical fragility. You have no home and you have little family or community support. The Department of Corrections interviewed a friend of yours in Auckland by telephone. He described you as a “very nice person” but referred to “escalating stresses” in your life and “difficulties [you were] experiencing and controlling [your] anger about these”.

[26] The pre-sentence report notes that you maintain that your offences were the result of a “misunderstanding”. It is frankly not clear to me what that “misunderstanding” could be. At trial some suggestion was made on your behalf that you had been angered by your wife’s allegedly callous treatment of “precious family heirlooms”. Apart from some family records, this seems to relate to furniture from your mother’s house which you had left in the back garden under rain sheets which had blown away in a storm. I do not think you can blame your wife for that. It is plain that despite the trespass and protection orders, you had had the opportunity, under supervision, to remove these items. You did not do so. In any case, even if she were at fault in those matters, and I do not think she was, it did not justify your subsequent offending.

[27] The pre-sentence report notes that you have a propensity for violence, an unwillingness to accept the criminality of your behaviour, a belief that your actions were the result of provocation by your wife, and a problem with the management of anger. On the other hand, I do note that your counsel says in his submissions that you acknowledge that your actions on that day were wrong. The report says that your motivation to change cannot be assessed as high, but that the seriousness of the present and similar past offending means that you must be assessed as “a high risk” of further offending and causing harm to others. It concludes:

... the seriousness of these offences precludes any recommendation other than a long term of imprisonment which will bring him [that is you] before the Parole Board in due course for the setting of release conditions.

Purposes and principles of sentencing

[28] I am required, Mr Gash, by the Sentencing Act 2002 to keep in mind a number of purposes and principles in sentencing. Section 7 requires me to have regard to the need to hold you accountable for the harm done to victims of your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm. I need to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future. I am also required to take into account the need to assist in your respective rehabilitation and reintegration into society in due course.

[29] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed. I must also consider the general desirability and consistency with appropriate sentences available. And then I need to impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

Starting point

[30] Both counsel agree that the lead offence is that of wounding with intent to cause grievous bodily harm. I shall sentence all other offences, including the earlier threat to kill, concurrently with this charge.

General principles

[31] The Court of Appeal decision in R v Taueki6 is the guideline authority for serious violent offending. It identifies a list of aggravating features contributing to the seriousness of grievous bodily harm offending.

[32] The Court then sets out three bands for sentencing based on those factors. Only two conceivably are relevant here:

(a) Band 1 (three to six years’ imprisonment): for offences at the lower end of the spectrum which did not involve extreme violence or violence that was life threatening. Where no aggravating features are present a start point at the bottom of the band is appropriate. Where one or more factors are present a higher start point is required. The Court notes a domestic assault on a vulnerable victim which does not involve a weapon nor causes lasting injuries may require a starting point in the region of four years’ imprisonment. Where there is premeditation and use of a weapon (but again no lasting injuries) a higher start point of five years or more is justified.

(b) Band 2 (five to ten years’ imprisonment): appropriate for offending with two or three of the aggravating factors. The Court of Appeal noted a premeditated domestic assault resulting in serious and lasting injury on a former or current partner as an example. The appropriate point in that band will depend on the seriousness of those factors – where the attack involves a weapon, particularly when brought to the scene, the starting point can be expected to be at the higher end of band two.

[33] The Court of Appeal noted that the illustrations were intended for guidance only, and that the suggested bands and starting points should be used flexibly. The sentencing Judge must exercise judgment in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability

inherent in the offending.7

Crown submissions

[34] Ms Orchard, on behalf of the Crown submits the following aggravating features are present: premeditation (evidenced by the previous threat and the bringing of the knife), entry into a dwelling, use of weapon, potentially life threatening injury, and attack to the neck.

[35] The Crown submits a starting point of eight years’ imprisonment is appropriate, based on Matthews v Police8 and R v Moa.9 The Crown submits the present case is more serious than Moa (start point of five and half years’ imprisonment) and it is more like Matthews (start point of eight years). In my view, however, the present case is far more proximate to Moa, albeit with the added element of home invasion, but not with significantly premeditated, sustained and very serious cut wounds – in that case just 2 millimetres from the victim’s carotid artery.

Defence submissions

[36] Your counsel, Mr McKenzie, submits Band One is the appropriate sentencing band. He submits a start point towards the top end, of five years’ imprisonment, is appropriate. He submits there are only two aggravating features present, the use of a weapon and home invasion. As to home invasion, he argues that a caravan has less privacy and sanctity than a dwellinghouse, especially where as in this case, neither victim resided in the caravan.

[37] Mr McKenzie submits the offending was not premeditated, that the knife was carried to disable the caravan tyres. Premeditation, he says, is undermined by the fact you did not know Mr Davies was at Riley Crescent when you left your house. Nor is it clear that you were aware of his presence once you were at the caravan.

[38] Mr McKenzie also emphasises the extent of the Mr Davies’ injury which, as I have referred to, was able to treated without significant medical intervention. It is submitted that whilst serious injury is an aggravating feature, “potentially life threatening injury” is not. Finally, he submits an attack to the neck is not an express aggravating feature. Counsel urges this not to be double counted – in order to establish guilt the jury must have been satisfied you intended grievous bodily harm, the location of the wound at the neck presumably being an operative consideration in this regard.

Discussion

[39] Mr Gash, after reflecting on those submissions I consider there are two aggravating features present, being entry into a dwelling and the use of a weapon.

[40] I do not accept that the caravan represents a less vulnerable part of the dwelling than the house proper. It is clear that the caravan was used as an auxiliary room of the house. In some respects it was a location of greater not lesser vulnerability.

[41] As to the use of a weapon, it is certainly an aggravating factor that you brought the knife with you to the Riley Crescent house. This is, however, a somewhat exceptional set of facts. I am not satisfied that the evidence indicates any intent on your part to use that weapon, save perhaps to let down the caravan tyre. You did not draw it on your wife, and no charge in relation to her beyond assault was advanced. Your use of it against Mr Davies, then, does appear to have been premeditated, save in the moments immediately before you used it to seize the advantage in the fight.

[42] Although I accept that an attack to the neck is a vulnerable part of the body, in the absence of multiple attacks to the neck and head area I am not prepared to count it as a distinct aggravating factor. I do however consider that the fact a knife was used to inflict a wound to the neck area adds to the aggravation of the use of a knife in and of itself. As I have already noted, a sentencing Judge must assess the

gravity of each aggravating factor. In that approach and in the approach I have taken today, I follow the decision of Clifford J in Matthews v Police.10

[43] As to mitigating features of the offending, the Court in Taueki identified two factors, provocation and excessive self-defence, as reducing the seriousness of this type of offending. They do not apply here.

[44] But I do take into account the two considerations I identified earlier. First, as I have just said, this was a spur of the moment offence committed in the course of an unexpected physical attack on you (but which you had brought upon yourself). Secondly, that you desisted from pressing home the attack after Mr Davies screamed and lay still.

[45] Accordingly, given the presence of the two aggravating factors, I consider that this offending falls, just, within Band Two. It falls at the bottom end of that band. It was fortuitous that the injury was not fatal, albeit the jury found you did not intend such a consequence.

[46] I therefore adopt a starting point of five years’ imprisonment on the lead charge of wounding with intent to cause grievous bodily harm.

[47] I then consider that an uplift of three months’ imprisonment is appropriate to take into account the other offending you have been convicted of.

[48] That is a total start point of five years and three months’ imprisonment.

Personal aggravating and mitigating factors

[49] The Crown submits an uplift is appropriate for your previous convictions, the fact offending occurred whilst on bail and while you were subject to a trespass order.

_{They submit an uplift of one year is appropriate for these factors.}

10 Matthews v Police HC Wanganui CRI-2011-483-23, 8 September 2011 at [16].

[50] Your counsel submits that you were not on bail for any offences of violence and that your arrest the previous night did not bear a strong resemblance to the offences for which you appear for sentence on today. Mr McKenzie submits an uplift on the basis of offending whilst on bail can be countered by the fact you have never offended on bail in the past. Finally, he points out that you do not have a history of violence of this gravity and therefore a significant uplift is not warranted. It is submitted that violence of this degree is out of character for you.

[51] I do not think the fact that you have never previously offended whilst on bail counters the fact you did in relation to the present offending. Offending whilst on bail entails the deliberate disobedience of Court orders. In this case particularly, you were also deliberating disobeying a trespass order on the property. It does not counter it but it does mitigate it. So I take into account the fact that this was the first occasion that you have offended whilst on bail and as Ms Orchard accepts, that does mitigate the degree of uplift. I also take into account that except for one of your previous assault convictions, you do not display a propensity to use weapons. This conviction is the gravest violent offence that you have ever committed. The majority of your assaults did not result in prison sentences.

[52] Despite this, it is inescapable that an uplift is justified. I uplift the start point for these factors by three months’ imprisonment. That takes you to five years and six months’ imprisonment.

[53] As to mitigating factors, your counsel argues that a discount would be warranted for the late amendment of the indictment, on day three of the trial, from that of causing grievous bodily harm to one of wounding. I do not consider this factor warrants any discount or adjustment to the start point. The Crown appropriately advanced grievous bodily harm as an alternative to the attempted murder charge. You defended all charges. Some of those charges, in particular the aggravated burglary and the assaults on Ms Archbold and Ms Carey, really were indefensible. You did not plead guilty to the wounding charge when the amendment was permitted. This submission requires me to believe that you would have done so had it been laid earlier. All the evidence is to the contrary.

[54] Secondly, as to remorse, Mr McKenzie says that you unequivocally acknowledge that what you did on the night of 24 June 2011 was unacceptable. He notes that you do offer to participate in a restorative justice initiative. You are I think therefore entitled to some credit for remorse and I will deduct four months’ imprisonment for remorse, which is about half the maximum discount that might otherwise be permissible.

[55] Your counsel submits that you are now a man in a frail state, both mentally and physically, having lost your marriage, your worldly possessions and your liberty. It is submitted you yourself suffered injuries from the resulting fight that followed your offending, and that as a result of these injuries you have ongoing medical issues which make the imposition of a prison sentence onerous. As I have said, you now suffer from renal failure. But there is no evidence before me that the onset of this condition was caused by the fight.

[56] An offender’s medical condition or ill health may justify a reduction in the length of a term of imprisonment where it would constitute a disproportionately severe penalty. The Courts have adopted a cautious approach to this factor so it does not become a licence to offend and avoid accountability.11 Statutory provision exist in any event for early release from imprisonment in cases of serious ill-health.12 I

am therefore not prepared to allow discount for this condition in the absence of medical evidence.13

[57] Finally, it is submitted on your behalf that the actions of the victims in taking the matters into their own hands, after the assault in the caravan, resulted in an attack upon you that became unjustified. It was not altogether unjustified given the wound you had meted out to Mr Davies, but it did exceed what might reasonably be expected. You were thrown to the ground, held down, and beaten about the head with a metal crutch. Although you were able to escape, you had moderate head

_{injuries and you collapsed in an adjacent street. You had to spend time in hospital as}

11. R v Verschaffelt [2002] NZCA 244; [2002] 3 NZLR 772; (2002) 19 CRNZ 638 (CA), at [24]; R v Luce [2007] NZCA 476, at [22].

12 Section 62(2)(a)(ii) Corrections Act 2004 and s 41 Parole Act 2002.

13 Cf R v Luce [2007] NZCA 476 and R v Ward HC Auckland CRI 2005-004-018756.

a result. Such a response by the victims, going well beyond what was necessary to apprehend and detain, is not to be encouraged. In Browne v Police Williamson J said:14

The task of a sentencing Court involves consideration of all matters affecting an offence and offender. For myself I do not think that a matter such as the deliberate infliction of injury following an offence can always be excluded from consideration of an appropriate sentence

.... The fact of it being deliberate, rather than accidental, adds to the humiliation and degradation which may have been suffered by the offender. A Court might decide that such punishment which had been unlawfully carried out was sufficient punishment for the particular offence.

I refer also to the same Judge’s remarks in MacIntyre v Police:15

In a situation where someone in the community is attacked and he exercises his own form of retribution afterwards, either personally or through friends, the injuries caused must be regarded by the Courts as part of the punishment flowing from the offence itself. At the very least they are factors which any sentencing Judge must take into account when weighing up what is the appropriate sentence.

[58] These remarks have not been the subject of much discussion in subsequent cases but I accept that they are appropriate and applicable. Although those were decisions issued prior to the Sentencing Act 2002, s 9(2)(c) provides the conduct of the victim can be taken into account as a mitigating feature in sentencing. That provision may encompass conduct both before and after the offending. I am therefore prepared to give an additional but small discount of two months’ imprisonment reflecting the injuries sustained following your apprehension by Mr Davies and Ms Archbold. Their actions by way of retribution went beyond what might reasonably be expected or condoned.

[59] As a result, Mr Gash, your sentence on the lead charge of wounding with intent to cause grievous bodily harm will be five years’ imprisonment.

14 Browne v Police HC Dunedin AP5/90, 7 May 1990.

15 MacIntyre v Police HC Christchurch AP 234/91, 1 November 1991.

Minimum Period of Imprisonment

[60] The Crown submit that the aggravating features in this case require a minimum period of imprisonment pursuant to s 85. In determining whether a minimum period is required I must be satisfied that the normal one-third parole eligibility period is insufficient for any of the purposes of holding the offender accountable, denunciation, deterrence or protection of the community.

[61] This is not such a case. I shall not impose a minimum period of imprisonment. But Mr McKenzie is right to say that your issues with anger and your attitude to the offending, which has meant that I have not been able to give you a full discount for remorse, mean that it is unlikely that the Parole Board will feel that it should exercise the most generous of concessions in terms of your total time in prison. Whether you are paroled at one-third of sentence period or not is a matter wholly and utterly in your hands and which you must take charge of in regaining the management and control of your life.

[62] Stand please.

Sentence

[63] Mr Gash, I sentence you as follows.

[64] On the charge of wounding with intent to cause grievous bodily harm I

sentence you to five years’ imprisonment.

[65] On the other charges, for which you have been convicted, I sentence you concurrently as follows:

(a) aggravated burglary: one year imprisonment;

(b) threatening to kill or do grievous bodily harm: six months’

imprisonment;

(c) assault with intent to injure: six months’ imprisonment; and

(d) male assaults female: one month imprisonment.

[66] All those sentences of imprisonment are to be concurrent. Your total sentence is therefore five years’ imprisonment.

Three strikes warning

[67] Because of the provisions of the Sentencing and Parole Reform Act 2010 I

am required to give you a Three Strikes warning.

[68] If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment and that will be served without parole unless manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[69] Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, Christchurch