R v Smith [2014] NZHC 586 (27 March 2014)

Last Updated: 7 April 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-019-008066 [2014] NZHC 586

THE QUEEN

v

TREVOR SMITH

Hearing: 27 March 2014

Appearances: R G Douch for the Crown

R Weir and G Prentice for the Defendant

Judgment: 27 March 2014

_{SENTENCING NOTES OF GILBERT J}

R v SMITH [2014] NZHC 586 [27 March 2014]

Introduction

[1] Mr Smith, you appear for sentence today having pleaded guilty to two charges of wounding with intent to injure and one charge of assault with a weapon, namely a chainsaw. The maximum penalty for each of these offences is five years imprisonment.

Facts

[2] The summary of facts, to which you have pleaded guilty, is as follows. At approximately 10.30pm on Friday 14 December 2012 you and your two co- offenders, Mr Singh-Kang and Mr Hona, were travelling in a car in the vicinity of Hakanoa Street, Huntly when you saw one of the victims who was known to you. This victim had recently sold Mr Singh-Kang’s car to a wrecking yard without permission. When this victim saw you he ran to a nearby friend’s house where he remained for approximately ten minutes before being asked to leave. He then left that address and started walking towards the Lake Hakanoa Motor Caravan Park in Huntly. You and your co-offenders saw him as you drove past. You got out of the car and chased the victim back to a friend’s house where he was able to hide for a time. The victim changed his clothes and again starting walking towards the caravan park. You saw him and chased him into the caravan park but the victim was able to hide in a stranger’s caravan before he was asked to leave. You and your co-offenders searched around the carpark and later found the victim hiding in a bush. The three of you chased him around the caravan park before forcing him into your car where he was punched and kicked before being driven away by you.

[3] After you drove from the caravan park you encountered the second victim. You stopped the car, and Mr Singh-Kang told this victim to get in saying that he was part of it. He was also kicked and punched as you drove to a picnic area near the Huntly Power Station where he was pulled from the car and the three of you punched, kicked, and stomped on him. You then removed a chainsaw from the boot of the car, started it up, and passed it to Mr Singh-Kang who ran it close to the first victim’s leg and head saying, “Do you think I’m all shit”? Mr Hona and Mr Singh- Kang then stomped on this victim one more time and told him not to tell the police.

The three of you then left. The attack at the picnic area was estimated to have lasted an hour.

[4] As a result of the attack, the first victim received multiple contusions to his face and body, a cut to the bridge of his nose, bruising to his eyes and upper lip, and sore legs, chest and back. He was treated in hospital for his injuries. The other victim received minor facial injuries. When spoken to by the Police you admitted driving the car and picking up the victims but said you were not aware of any assault occurring.

[5] Despite pleading guilty on the basis of this summary of facts, you now dispute some of these facts. In particular, you dispute that you chased the first victim into the caravan park. You deny that you were involved in punching and kicking this victim, saying that you simply drove the car. You also deny that you were involved in punching, kicking and stomping on this victim at the power station although you acknowledge that you knew it was going to happen and allowed it to occur.

[6] Your counsel has accepted the Crown’s position that you must be regarded as being equally culpable as your co-offenders, even on the basis of the role that you accept you did play. This is a proper concession given that the Court of Appeal has repeatedly stated that those who take an active and significant role in offending carried out as part of a joint enterprise should properly be regarded as equally culpable. The disputed facts, even if found to exist, would therefore not be significant to the sentence. In these circumstances, you have accepted, through your counsel, that it is not necessary to conduct a disputed facts hearing under s 24 of the Sentencing Act.

Principles and Purposes of Sentencing

[7] In sentencing you I must take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. I must hold you accountable for your actions and promote in you a sense of responsibility for the harm you have caused to the victims. I must denounce your conduct and deter you and others from similar offending. I must also consider your rehabilitation and reintegration into society, and

I am obliged to impose the least restrictive sentence appropriate in the circumstances.

[8] The sentences imposed on your co-offenders have particular significance in sentencing you today. So far as possible, I should impose a sentence on you that is consistent with the sentences that they received after making appropriate adjustments to reflect any material differences in your respective culpabilities and your personal circumstances and background. Mr Hona received a sentence of six months community detention, 12 months supervision and 250 hours community work. Mr Singh-Kang received a sentence of 11 months home detention.

Starting point

[9] Consistent with the approach adopted by the other Judges who sentenced your co-offenders, I will proceed on the basis that the assault with intent to injure the first victim is the lead offence. The Court of Appeal issued a guideline judgment for offending involving causing grievous bodily harm with intent to do so in R v Taueki.¹

This judgment set three bands with increasing levels of seriousness depending on the

presence and extent of various aggravating factors. In Nuku v R the Court of Appeal provided guidance on how Taueki should be adapted and applied in cases like the present where the offending involves injuring with intent to cause injury, which is less serious offending.² 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 factors rather than simply focusing on the number of

them.

[10] Your offending involved four of the factors identified in Taueki as elevating the seriousness of the offending. First, there was a degree of premeditation in that you pursued the first victim over a prolonged period; this was by no means a spontaneous act. Second, the offending involved vigilante action with you and your co-offenders taking the law into your own hands acting out of revenge for what the victims had done. Third, there were multiple attackers, you and your two co-

_{offenders. Last, but by no means least, the assault on the first victim, in fact on both}

¹ _{R v Taueki [2005] 3 NZLR 372.}

² Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

victims, involved an attack on the head. I consider that your offending comes near the top of band 2 or the bottom of band 3 as set out in Nuku. Consistent with the approach taken by the Judges who sentenced your co-offenders, I consider that the appropriate starting point for the lead offence is a term of two years three months imprisonment.

[11] The assault on the second victim was a separate attack. It was less serious but also involved some of the aggravating factors I have described. I consider that

an uplift of six months imprisonment should be applied for this offending.

[12] A further uplift of three months should be applied in respect of the assault with a weapon. I note that a similar uplift was applied by Asher J in sentencing Mr Singh-Kang. You must accept equal responsibility for this offending because you were the one who took the chainsaw from the back of the car, started it, and then handed it to Mr Singh-Kang. This would have been terrifying for the victim as was undoubtedly intended.

[13] Applying these two uplifts results in a starting point of three years imprisonment.

Personal factors

[14] You have a number of previous criminal convictions. While your prior convictions are not for offences involving violence, it is significant that you have been convicted of two qualifying offences under the three strikes legislation. It is worrying that you have demonstrated so little regard for the warnings you have received under this legislation.

[15] Your first warning under the three strikes regime was given for offending that occurred on 16 February 2011. You were given your first three strikes warning on

2 June 2011 when you were convicted and sentenced to community work and intensive supervision for that offending. Despite receiving that warning you committed your second three strikes offence just three days later, on 5 June 2011. The sentence initially imposed for that offending was reduced by the Court of Appeal to one of three months imprisonment. The Court of Appeal’s decision was

released on 14 September 2012. Your current offending took place exactly three months later, on 14 December 2012.

[16] Your previous offending was different in kind and would not of itself justify an uplift being imposed. However, the fact that you offended again while subject to release conditions and so soon after the two warnings you were given under the three strikes legislation, constitutes a personal aggravating factor and I consider that an uplift of three months should be applied to take account of this.

[17] Against this, I note that you were only 22 years of age at the time of the current offending. Your co-offenders were aged 18 and 22. They each received discounts on account of their youth consistent with the guidance given by the Court of Appeal in Churchwood v R.³ Your co-offenders each received generous discounts of 20 per cent for youth, but this took into account their particular prospects for rehabilitation. I do not consider that you are entitled to such a generous discount but I nevertheless consider that some discount should be given to take account of your comparative youth at the time of the offending and to ensure consistency with your

co-offenders. I propose to apply a 15 per cent discount for this factor in your case.

[18] Applying the uplift of three months for your previous criminal history and the fact that the offending occurred while you were subject to release conditions, and the discount for youth of six months, results in an indicative sentence of 33 months imprisonment before considering your guilty plea.

Guilty plea

[19] I turn now to the question of what deduction, if any, should be allowed for your guilty plea.

[20] The Crown submits that a minimal discount, in fact no discount, should be allowed for your guilty plea for two principal reasons. The first is that you did not formally advise that you would plead guilty until 31 January 2014, only ten days before the trial was due to commence. The guilty plea was not entered until

10 February 2014, the scheduled trial date. Second, the Crown argues that you have

_{already received a significant benefit as a result of the Crown’s decision not to}

³ Churchwood v R [2011] NZCA 531, (2011) 25 CRNZ 446.

pursue the kidnapping charge in your case. Your two co-offenders both pleaded guilty to that charge, and uplifts of nine months imprisonment in relation to it were imposed in both cases. Had the Crown elected to pursue the kidnapping charge, and if you had been convicted of it, you would have been subject to the consequences of having committed a third strike offence. The sentencing judge would have been obliged to sentence you to the maximum term of imprisonment prescribed for that offence, namely 14 years imprisonment, unless the Court considered that it would be manifestly unjust to do so.

[21] Your counsel submits that you should receive a 20 per cent discount for your guilty plea, being the same level of discount given to your co-offenders.

[22] Your guilty plea came very late, only ten days before the trial was due to commence. Your guilty plea was required to secure the concession proposed by the Crown not to proceed against you in respect of the kidnapping charges. I consider that there is some force in the Crown’s submission that having received this considerable benefit in return for your guilty plea, you should not receive a further generous discount for your plea. I also consider that the Crown had a strong case against you in relation to the kidnapping charges. Despite these factors, your guilty plea has avoided the costs of a trial and has spared your victims and other witnesses from having to give evidence at the trial. I consider that some discount in the order of, actually slightly less than, ten per cent, should be allowed for this. This results in an end sentence of two years six months imprisonment.

Minimum period of imprisonment

[23] The Crown submits that I should impose a minimum period of imprisonment. Mr Smith, you are at a cross roads in your life. You have avoided conviction for a third strike offence. For that reason, the consequences for you today are far less serious than they otherwise would have been. You are still comparatively young and there are some positive signs that you have the capacity and willingness to turn your life around. I sincerely hope that you do.

[24] I do not consider that it is necessary to impose a minimum period of imprisonment given that you have no history of violent offending and having regard to the particular circumstances of your current offending.

Final Sentence

[25] Mr Smith, would you please stand. On each of the charges to which you have pleaded guilty, I sentence you to two years and six months imprisonment. The sentences are to be served concurrently.

[26] Mr Smith, the Crown offers no evidence in relation to the two kidnapping charges that you face and accordingly, I discharge you on both of those charges pursuant to s 347 of the Crimes Act.

_{[27] You may now stand down.}

M.A. Gilbert J