O'Docherty v Police [2014] NZHC 2312 (23 September 2014)

Last Updated: 9 October 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000016 [2014] NZHC 2312

BETWEEN	LIAM DAVID O'DOCHERTY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 September 2014
Appearances:	J Turner for Appellant R D Smith for Respondent
Judgment:	23 September 2014

_{JUDGMENT OF GENDALL J}

Introduction

[1] The appellant, Mr O’Docherty, appeals against a sentence of two years and four months imprisonment imposed by Judge Phillips in the Dunedin District Court on 29 May 2014 for injuring with intent to injure (under s 189(2) Crimes Act 1961 which has a maximum penalty of five years imprisonment), breach of release conditions and outstanding fines.

[2] Mr O’Docherty appeals on the ground that the sentence Judge Phillips imposed was manifestly excessive given:

(a) The circumstances of the offending;

(b) Mr O’Docherty’s personal circumstances; and

(c) The sentence is not within range of other sentences imposed for similar offending.

O'DOCHERTY v NEW ZEALAND POLICE [2014] NZHC 2312 [23 September 2014]

Background facts

[3] At around 9 a.m. on 15 December 2013, the victim was at home in bed when three males, including Mr O’Docherty, forced their way into the victim’s flat by smashing through the front door. Mr O’Docherty and the other two males then attacked the victim who was at that point standing. They threw a number of punches hitting the victim about the head and body causing him to fall to the ground. While on the floor the victim was kicked and stomped on by his three attackers. The victim has said he believed the attack lasted for a minute or more.

[4] When Mr O’Docherty and his associates had left the address, the victim found that two television sets in his flat had been smashed. The television sets were worth an estimated $1300. Damage to the front door of the flat amounted to

$201.30.

[5] As a result of the attack the victim was treated at Dunedin Public Hospital for bruising and grazes to his head, arms and body. Mr O’Docherty declined to speak to the police.

The District Court decision

[6] In the District Court Mr O’Docherty pleaded guilty and came before Judge

Phillips on 29 May 2014.

[7] On the injuring with intent to injure charge the Judge adopted a starting point of two years and six months imprisonment. He relied on the approach in Nuku v R¹ when imposing sentence upon Mr O’Docherty. Judge Phillips identified as aggravating features:

(a) Extreme violence, including kicking and stomping of a man after

Mr O’Docherty and his associates had knocked him to the ground;

(b) Premedication because Mr O’Docherty and his associates kicked

_{down the front door to get to the victim to “sort him out”;}

¹ Nuku v R [2012] NZCA 338.

(c) Attacking of the head; (d) Multiple attackers;

(e) Home invasion;

(f) The vulnerability of the victim; and

(g) A degree of vigilante action.

[8] Judge Phillips determined that Mr O’Docherty’s offending came under band

3 of Nuku which has a starting point of between two and five years imprisonment for offending where three or more aggravating factors are present. Judge Phillips accepted that although Mr O’Docherty was not the principal offender, he was there “playing a role” (at para [14]). The starting point he determined of two years six months was at the lower end of band 3 of Nuku.

[9] The Judge uplifted this starting point by three months to reflect the breach of release conditions and a further two months which he said was “in relation to your ($4358.82) outstanding fines”. This brought the adjusted starting point to one of two years and 11 months imprisonment.

[10] Judge Phillips then had regard to Mr O’Docherty’s previous convictions but declined to impose an uplift because he accepted there was no previous relevant violence offending.

[11] The Judge then gave a 20% discount for Mr O’Docherty’s guilty plea but he found that there were no other mitigating factors. This brought the final sentence to one of two years and four months imprisonment.

[12] Judge Phillips then considered the totality after having regard to the overall offending. He considered that the end point was an appropriate level for Mr O’Docherty’s sentence. He also imposed reparation of $750.30 to be paid in weekly instalments with a first payment to be made within 30 days of his release.

[13] In relation to the $4358.82 outstanding fines, Judge Phillips then remitted these and in lieu imposed a concurrent sentence of two months imprisonment. And on each charge of breach of community work he cancelled the sentence and remitted all hours, imposing a one month prison sentence again to run concurrently with the two years and four months.

[14] This produced an effective end sentence of two years and four months imprisonment.

Legal principles governing an appeal

[15] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 provides:

(2) The first appeal court must allow the appeal if satisfied that-

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[16] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:²

(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different

_{sentence “should” be imposed.}

² Tutakangahau v R [2014] NZCA 279 at [26] – [36].

(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, with s 250(2) the legislature has adopted the error correction approach and therefore it must be shown that there was an error “whether intrinsically, or as a

result of additional material submitted” on appeal.³ If there is an error

of the requisite character, the court will then form its own view of the appropriate sentence.

(d) In assessing whether an alleged error is of the requisite character it will be helpful to consider whether the error is material.

(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and continue to be utilised when considering s 250(2).

(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Starting point

[17] The Court of Appeal issued a guideline judgment for offending involving causing grievous bodily harm with intent to do so in R v Taueki.⁴ That judgment set three bands with increasing levels of seriousness depending on the presence and extent of various aggravating factors.

[18] In Nuku the Court of Appeal provided guidance on how Taueki should be adapted and applied in cases like the present where the offending involves injuring

³ _{R v Shipton [2007] 2 NZLR 218 (CA) at [139].}

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

with intent to injure, which is less serious offending. The Court determined there were three appropriate bands in relation to this sort of offending:⁵

(a) Band one is where there are few aggravating features and a less than custodial sentence could be appropriate;

(b) Band two involves three or fewer of the aggravating factors listed in

Taueki that relates to more serious assaults;⁶ and

(c) Band three dictates that a starting point of two years up to the statutory maximum of five years will apply where there are three or more aggravating features.

[19] It is the combination of aggravating features which leads to the more serious bands. The Court emphasised that sentencing is an evaluative exercise, not a formulaic one, and that the sentencing Judge must evaluate the seriousness of any aggravating features rather than simply focusing on the number of them. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band.⁷

[20] In my assessment Judge Phillips rightly determined that the following five aggravating features were clearly present in this offending:

(a) Premeditation;

(b) Attacking the head; (c) Multiple attackers; (d) Home invasion; and

_{(e) Vigilante action.}

⁵ _{Nuku v R, above n 1, at [38].}

⁶ _{R v Taueki, above n 4, at [31].}

⁷ Nuku v R above n 1, at [42].

[21] There is a possible argument here also that the other two factors, being the use of extreme violence and the vulnerability of the victim, might also be seen as present here. On these aspects however it needs to be noted that:

(a) Although the offending involved multiple attackers and attacking of the head, at one level it could be seen as neither particularly gratuitous nor sufficiently prolonged to attract the label of “extreme violence”.⁸

(b) The victim here was neither a child, elderly nor female. It could not be said that he was a vulnerable person on account of his age or any other direct personal factor. Nevertheless in my view the victim might still be seen on a contextual basis as someone who is vulnerable. This is because the attack on him would have come as a complete surprise. The victim was clearly not expecting it, having been in bed at the time. And certainly, once the three attackers got the victim on the ground and began kicking and stomping him, there is no doubt he found himself in a very vulnerable position.

[22] Overall however, I do not consider that these last mentioned factors would necessarily change the starting point which Judge Phillips adopted for Mr O’Docherty. The five aggravating features noted at para [20] above were significant. Mr O’Docherty’s offending in my view still fits squarely within band 3 of Nuku. Therefore the starting point of two years and six months imprisonment was appropriate and well within the range available to Judge Phillips.

Aggravating features

[23] Judge Phillips uplifted this starting point by three months to reflect the breach of release conditions and a further two months for the outstanding fines. Before me neither Ms Turner, counsel for Mr O’Docherty, nor Mr Smith counsel for the Crown,

_{took any issue with these uplifts.}

⁸ R v Taueki, above n 4 at [31](a).

[24] And clearly, offending by a person who is on bail or parole or subject to a sentence is an aggravating factor justifying an uplift from the starting point. It is a reflection of the offender’s disregard for Court processes and orders.⁹

[25] I see no error in these uplifts to the starting point of three months and two months respectively to reflect these matters.

Mitigating factors

[26] Judge Phillips in the District Court reduced Mr O’Docherty’s sentence by

20% to reflect his early guilty plea. I am satisfied he was correct to do so. No real issue is taken with this before me by either counsel.

[27] So far as any other mitigating factors are concerned, although little was made of this before me by Ms Turner, it is suggested that Mr O’Docherty has shown some remorse and has written letters of apology to the victim and the Court. There is little in this aspect as I see it, however. No further discount in my view is justified.

Comparable Cases

[28] In terms of a comparable case to the present, here both counsel referred me to the decision Harawira v R.¹⁰ In that case the appellant pleaded guilty to charges of injuring with intent to injure and theft, arising out of one incident, and was sentenced to three years and two months imprisonment.

[29] In Harawira the appellant and two co-offenders were drinking alcohol at a beach when a 12 year old boy allegedly mouthed abusive words at the three men. As a result they chased him to his home where they found him in his bedroom. He was attacked by all three men in a similar fashion to the present case, and he suffered similar injuries. In addition, the attackers took a Sony Playstation valued at about

_$1200.

⁹ _{Clunie v R [2013] NZCA 110.}

¹⁰ Harawira v R [2014] NZCA 8.

[30] A starting point of three and a half years imprisonment was adopted with the Judge identifying four aggravating features, namely attacking the head, multiple offenders, an element of home invasion, and a vulnerable youth victim, particularly because of his age.

[31] In the Court of Appeal, it was determined that whilst two of those aggravating features might have been seen at the lower end of the scale (the attack to the head and multiple offenders) the combination of all four factors meant that the starting point identified was justified. The Court also commented that the theft of the Playstation alone might have justified an increase to the starting point of six months, or in other words, an overall starting point of four years for the incident as a whole. Ultimately the appeal was dismissed by the Court of Appeal.

[32] While the present case and Harawira are distinguishable, it is clear to me that the Harawira decision does indicate that the sentence imposed by Judge Phillips in the present case was well within range. Although in Harawira, the victim was a child being a 12 year old boy, in that case it was a spontaneous over-reaction to a perceived slight, whereas the offending in the present case in my view was clearly premeditated.

[33] Further, the offending in the case before me involved a home invasion of some significance with the front door being smashed down. This differed from the situation in Harawira.

[34] In both cases however, an attack was perpetrated by three men targeting the victim’s head and continuing to attack him once he was defenceless on the ground. In addition both cases involved simultaneous property offending of a not dissimilar value, although some reparation was forthcoming in Harawira. Judge Phillips in the present case does not appear to have made any uplift to factor in the damage caused, as part of his starting point.

[35] Further, the present case involved a degree of vigilante action which is a standalone aggravating feature that was absent in Harawira. Finally, I note here that Mr O’Docherty was also for sentence on two charges of breaching community work

in circumstances where he had 10 prior convictions for breaching community based sentences, release conditions or failing to answer bail. Further, he had a substantial amount of fines remitted.

[36] In all these circumstances I do not consider that the starting point adopted by Judge Phillips which is clearly within an appropriate range, the uplifts and indeed the final sentence, were manifestly excessive or in any way other than appropriate.

[37] The appeal against sentence is dismissed.

...................................................

Gendall J

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin