Grace v Police [2012] NZHC 3495 (17 December 2012)

Last Updated: 15 April 2013

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-000086 [2012] NZHC 3495

BETWEEN MATTHEW GRAHAM GRACE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 17 December 2012

Appearances: J Young for Appellant

CAA Anderson for Respondent

Judgment: 17 December 2012

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors/Counsel:

Marsden Woods Inskip & Smith : PO Box 146, Whangarei 0140 – DX AP24510

J Young, Barrister : PO Box 859, Whangarei 0140 – DX AP24611

GRACE V NEW ZEALAND POLICE HC CRI 2012-488-000086 [17 December 2012]

Introduction

[1] The appellant, who is 19, has appealed against a sentence of two years four months imprisonment on one charge of injuring with intent to cause grievous bodily harm, brought under s 189(1) of the Crimes Act 1961. Sentence was imposed in the District Court at Whangarei on 13 November 2012.1

Facts

[2] On 13 January 2012 at about 1:30am, the appellant and his 16-year-old co- offender SF were at a family function. The appellant was 18 at the time.

[3] The victim, who was 46, arrived at the function to pick up his partner. It is said in the summary of facts that the appellant attempted to pick a fight with the victim, but another person intervened and things settled down. The victim stayed for approximately 30 minutes before he and his partner left the function. The offenders had left just before they did and waited at an adjacent property, apparently in preparation for an assault on the victim.

[4] When the victim and his partner walked past, the offenders punched the victim in the back of the head five or six times. The victim fell to the ground and was then repeatedly kicked in the face, neck and his back for two to three minutes as he lay on the ground. The victim tried to protect his face by covering his head with his arms.

[5] The victim managed to get up, he recognised SF as one of his attackers. He chased SF, who was too fast. The victim then turned around to go back to his partner and as he did, the appellant threw a large rock at him which hit the victim in the face,

_{knocking him unconscious.}

1 Police v Grace DC Whangarei CRI-2012-088-1485, 13 November 2012.

[6] When the victim regained consciousness, he walked to where his partner was standing. The offenders then started throwing bottles at him but fortunately none of them hit him.

[7] When spoken to, the appellant admitted the facts as outlined, except that he claimed the rock had hit the victim’s chest, not his face. He also said it was SF’s idea. The appellant was originally charged with wounding with intent to cause grievous bodily harm, under s 188(1) of the Crimes Act, but entered a guilty plea when the charge was reduced to one under s 189(1).

[8] As a result of the attack, the victim was hospitalised and required surgery to stitch a large gash in his upper lip. His teeth were broken in the assault, and he sustained a black eye, a cut below his eye, grazes to both elbows and a sore back.

District Court sentencing

[9] The sentencing Judge, Judge Harvey, outlined the facts and noted the considerable amount of written material that had been provided to him.

[10] The Judge discounted the pre-sentence report writer’s comments that the appellant had shown little remorse for his offending. Rather, the Judge was of the view that because of the appellant’s age, guilty plea at the earliest opportunity, and willingness to attend restorative justice, the appellant was entitled to some credit. (I observe at this point that the appellant’s remorse was recognised in an updated report provided on 29 October 2012.) The Judge also accepted that the appellant had a difficult background, which had been outlined in a detailed psychologist’s report.

[11] The Judge observed that there were a number of real aggravating factors, these were: sustained violence, planning and premeditation, the fact that serious injury was caused, the use of weapons (rock and bottles), an attack to the victim’s head, and the fact that there were two attackers. The Judge observed that the rock used was large, and that it could have caused much more serious injury.

[12] The Judge considered that the aggravating features would realistically have placed the offending into Band 2 of the sentencing bands set out by the Court of Appeal in R v Taueki,2 although he noted that Taueki was for the more serious offence of wounding with intent to cause grievous bodily harm (s 18(1)), and that it should be adapted to apply to offending under s 189(1). The Judge adopted a starting point of four years imprisonment.

[13] From that, the Judge gave a credit of ten months for the appellant’s young age, his personal circumstances, lack of previous convictions, remorse, and willingness to engage in restorative justice. The Judge then allowed a further discount of ten months for the guilty plea, which resulted in an end sentence of two years four months imprisonment.

Submissions

[14] For the appellant, it was submitted that the sentence was manifestly excessive, with regard to his previously clear record and steps taken towards rehabilitation, his offer to attend restorative justice, his early guilty plea, his written apology, his difficult and complicated personal circumstances, and disparity with his co-offender (who had received a discharge under s 282 of the Children Young Persons and their Families Act 1989).

[15] It was also submitted that the Judge erred in setting the starting point by applying Taueki as opposed to the bands set out for sentencing in cases where the intent is to injure, rather than to cause grievous bodily harm, in the Court of Appeal’s judgment in R v Harris.3

[16] Ms Young submitted that the aggravating features present were the attack to the head, the use of a rock (which, she submitted, had not been taken to the site with the intent of using it as a weapon), and the fact that there were two offenders involved. She submitted that any planning or premeditation was, at least to a

_{considerable extent, discounted by the fact that the attack was the result of}

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

3 R v Harris [2008] NZCA 528.

something which had happened earlier at the function, when the victim had engaged in some form of sexual inappropriate behaviour towards a relative of the co-offender.

[17] Ms Young also submitted that while the victim was injured, it was not life threatening, debilitating or of long duration such as is envisaged in cases referred to in the Taueki guidelines. Ms Young submitted that it was not appropriate to assess the appellant’s offending under Taueki, but there should be a considerable step down from the guidelines. Otherwise, she submitted, the appellant would have obtained no benefit from the fact that the charge against him was reduced from one under s 189(1) to one under s 188(1).

[18] In summary, Ms Young submitted that the starting point should have been two years six months, to three years.

[19] While accepting the difficulty in arguing for parity between sentences in the Youth Court and the District Court, Ms Young submitted that SF was only 20 months younger than the appellant, yet received a discharge. She submitted that there could be a clear perception of an injustice given their equal involvement in the offending and the small difference between their respective ages.

[20] Further, Ms Young submitted that the Judge failed to take into account ss 17 and 18 of the Sentencing Act 2002 and she submitted that the appellant, being under

20 years of age, could rely on a presumption against imprisonment.

[21] Finally, Ms Young submitted that the Judge had failed to take into account the appellant’s personal circumstances including the matters outlined in the psychologist’s report, the sudden death of his mother which had occurred in May

2012, his school attendance and achievement since the offending, ongoing counselling throughout 2012 to address issues of anger and grief, the unexpected pregnancy of his partner, the very restrictive bail conditions over a 10-month period; and employment opportunities that would be available to the appellant.

[22] It is necessary to note one particular aspect of this submission and that relates to counselling the appellant has obtained (on a self-referral) by Mr Osborne, a

counsellor in Whangarei. It is evident from an affidavit filed very recently by Mr Osborne that the appellant has attended 12 counselling sessions over the ten month period from 19 March through to 30 October 2012. Mr Osborne concludes his report on the counselling by saying:

In spite of these huge stressors he was attending school regularly and taking hold of learning and work opportunities. He seemed to be accepted and liked by his peers. With the prospect of work in forestry becoming a viable direction for 2013 Matthew was beginning to see that his future could be positive.

[23] As Ms Young submitted, that is a very clear change for a person who had previously not been attending school and had had considerable difficulties, in particular with ADHD.

[24] On behalf of the Police, Ms Anderson submitted that the Judge had plainly and carefully given consideration to the appellant’s personal circumstances and that the Judge had taken into account all of the material submitted to him. She further submitted that the Judge had not adopted a starting point that was too high, given the aggravating features present in the offending, that the Judge had given consideration to the desirability of not imposing a sentence of imprisonment,4 and that the Judge had applied the appropriate discount for the appellant’s guilty plea.

[25] I turn now to the particular aspects argued on appeal.

The appellant’s personal circumstances

[26] It is clear that the Judge did take the appellant’s personal circumstances into account. However, the Judge was not aware of the appellant’s attendances with Mr Osborne, nor of the outcome of those attendances. Ms Young has advised that she, too, was not aware of it until very recently; that is the reason why it was not put before the Judge at sentencing. However, on the matters considered by the Judge the

_{discount applied for the appellant’s personal factors was within range.}

4 Pursuant to s 16 of the Sentencing Act.

[27] I also observe at this point that neither s 17 nor s 18 of the Sentencing Act creates a presumption against imprisonment for those under 20. Section 17 permits the court to impose a sentence of imprisonment if an offender is considered unlikely to comply with other sentences. Section 18 prevents a court from imposing a sentence of imprisonment on an offender under the age of 17 except for a purely indictable offence. I have already mentioned the Judge’s concern that a sentence of imprisonment should not be imposed unless it was the appropriate sentence in the circumstances, as is required by s 16.

The starting point

[28] In Taueki, the Court of Appeal set out three bands for sentencing for the offence of wounding with intent to cause grievous bodily harm, under s 188(1). The starting points range from three years up to 14 years, depending on the presence of aggravating features. The Court in Taueki anticipated that its guidelines could be applied, by analogy, to other offences involving inflicting serious violence, adapted as appropriate to reflect the seriousness of the particular offence, and the maximum penalty provided for it.

[29] In its judgment in Harris, the Court of Appeal adopted the Taueki bands for the less serious offences where the intent is to injure, rather than to cause grievous bodily harm. Those bands allow for starting points ranging from a non-custodial sentence to five years’ imprisonment.

[30] In its recent judgment in Nuku v R,5 the Court of Appeal expressed the view that there were difficulties with the approach in Harris,6 and set out guidance as to how the Taueki bands could be adapted to charges involving the lesser intent.7

[31] The maximum penalty for the offence of wounding with intent to cause grievous bodily harm (s 188(1), considered in Taueki) is imprisonment for 14 years.

_{The maximum penalty for injuring with intent to injure (s 189(1), the offence on}

5 _{Nuku v R [2012] NZCA 584.}

6 _{At [33].}

7 At [38].

which the appellant was sentenced) is ten years’ imprisonment. By contrast, the maximum penalties for offences where the intent is to injure rather than to cause grievous bodily harm are seven years (under s 188(2)) and 5 years (under s 189(2)). The difference in maximum penalties indicates Parliament’s view of the comparative seriousness of the two steps of offending, differentiated according to the intent involved.

[32] In my view, the Judge did not err in setting the starting point in this case for the appellant’s sentencing by reference to Taueki. Further, I am satisfied that the starting point he adopted was not too high. In this case, there were a number of aggravating features: the attack on the victim was planned (even if not over a long period of time), it was sustained, there were two attackers, a rock and bottles were used as weapons, the attack (by throwing the rock) was to the victim’s head and the attack continued when the victim was vulnerable (being on the ground). Further, the attack caused serious injury. A starting point of four years was, in my view, clearly justified under the Taueki guidelines, and under the Harris and Nuku guidelines.

Disparity with the co-offender’s sentence

[33] As Ms Young conceded, there is a significant hurdle for the appellant, in that his co-offender was 16 years old and was therefore dealt with in the Youth Court. That jurisdiction, for obvious reasons, takes a quite different approach. I also note the respondent’s submission that there was a significant difference in the appellant’s offending, in that the appellant threw a rock at the victim, whereas SF did not. That aside, disparity between sentences received by co-offenders will not necessarily result in a successful appeal, if the sentence that was imposed is not itself excessive. In my view, the focus must remain, in each case, on its own facts and on whether the appellant’s sentence was manifestly excessive.

Bail conditions

[34] The final matter raised by Ms Young was the appellant’s bail conditions. He was subject to a curfew from 6pm to 7am for a period of ten months. Clearly, and as Ms Young properly acknowledged, his circumstances are quite different from those

where a person is restricted to a single address, day and night, or subject to electronically monitored bail which severely restricts movement.

[35] Save for the matter that I will come to shortly, I am not satisfied that the sentence in this case was manifestly excessive.

Events after the offending

[36] In the absence of the matters referred to in the psychologist’s report, and in particular the report from Mr Osborne as to the counselling the appellant has undertaken, at his own instigation, since the offending, I would have accepted Ms Anderson’s submission that the end sentence was within range, and dismissed his appeal against sentence.

[37] However, I have concluded that those two reports are significant and point to a different outcome. The sentencing Judge was not aware of the appellant’s counselling with Mr Osborne, nor was he aware of the very positive outcome of that counselling. I am satisfied that if the Judge had been aware of the counselling, and the appellant’s response to it, he would have taken a different approach to sentencing and that a greater discount would have been given to reflect the substantial progress the appellant has made – without any Court intervention.

[38] Accordingly, in the circumstances of this case, which I believe to be almost unique, I have concluded that the appeal against sentence should be allowed.

[39] While I do not have an approved address for a sentence of home detention I have concluded that the sentence imposed should have been no more than two years imprisonment and that home detention should therefore have been considered.

[40] A sentence of 12 months home detention would, in my view, be an appropriate response to the appellant’s offending and would also meet the purposes of sentencing of encouraging the appellant’s rehabilitation and reintegration into society. It will also suitably meet the need for deterrence and denunciation.

[41] In all of the circumstances I consider it appropriate to allow the appeal. The sentence of two years and four months imprisonment is quashed and a sentence of two years imprisonment is imposed in its place.

[42] I also direct that, in the event that a suitable address for a sentence of home detention is available then the sentence of two years imprisonment is to be replaced by a sentence of 12 months home detention. Such a sentence is to be subject to the standard conditions for home detention but also to special conditions that:

(a) The appellant is to attend and complete an appropriate alcohol and drug counselling or treatment programme to the satisfaction of his probation officer and the programme provider. Details of the appropriate programme are to be determined by the probation officer.

(b) The appellant is to undertake and complete any other counselling, treatment, or educational programme to the satisfaction of the probation officer and programme provider. Details of the treatment, counselling, or educational programme are to be determined by the probation officer.

(c) The appellant is not to purchase, possess, or consume alcohol or illicit drugs for the duration of the sentence of home detention.

Andrews J