R v Jury [2014] NZHC 687 (4 April 2014)

Last Updated: 15 April 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-041-0067 [2014] NZHC 687

THE QUEEN

v

_{JOSEPH TE RONGOPAI JURY}

Hearing:	4 April 2014
Appearances:	C R Walker for the Crown R Fairbrother QC for the prisoner
Sentence:	4 April 2014

_{SENTENCING NOTES OF CLIFFORD J}

[1] Mr Jury, you appear for sentence having been found guilty by a jury of wounding Hemi Tiwai Greening with intent to cause him grievous bodily harm. The maximum penalty for that crime is 14 years’ imprisonment.

Facts

[2] At your trial you faced two charges, attempted murder and, in the alternative, wounding with intent to cause grievous bodily harm. The jury found you not guilty on the first charge, but guilty on the second. Based on the evidence given at your trial and the jury’s verdicts, I find the facts on which you are to be sentenced to be as follows.

[3] At the time of your offending your relationship with your partner, Naomi Le

_{Geyt, which she described as having lasted for more than five albeit a bit on and off,}

R v JURY [2014] NZHC 687 [4 April 2014]

had come to an end. You had one child together. It had not been your idea to end that relationship and it is clear you were having difficulty accepting the fact that it had ended.

[4] You went to Morris Spence Avenue on the evening of Saturday 15 December

2012. I accept, as the Crown contended at the trial, that you looked for Ms Le Geyt earlier that evening and that when you did not find her you slashed her clothes with a knife.

[5] Ms Le Geyt returned home in the early hours of Sunday morning with Mr Greening. They went to bed. You returned to the house about 5.00 am in the morning. You went into the bedroom and found Ms Le Geyt in bed with Mr Greening. While Mr Greening was asleep you stabbed him in the left abdomen, just below the edge of the ribs. That caused him to wake up. You then stabbed him again in the abdomen, at which point Mr Greening began defending himself.

[6] During the subsequent struggle you wounded him with the knife twice on the left leg and twice on the upper left arm, including one blow which pierced his bicep. You then wounded him twice on the upper back and you nicked his left ear.

[7] The medical evidence was the first stab wound was at least two centimetres deep, as it had pierced the abdominal wall. The second did not pierce the abdominal wall completely. The wounds to Mr Greening’s upper thigh were a couple of centimetres deep. The remaining wounds, other than the stab which pierced the bicep, were described as superficial.

[8] I think it was a brother of yours who happened to be staying at the house that evening. He heard the noise of your struggle with Mr Greening and intervened. You and he left together.

[9] The weapon you used was never recovered.

[10] In text messages you exchanged with a friend after this incident you said you had told Ms Le Geyt you would stab any “hook up” she happened to take around

your son, and that your son had told you she was seeing a man. You had, in my view, gone around expecting to find that man but had encountered Mr Greening instead.

Sentencing process

[11] I will now try and explain the sentencing process to you.

[12] In determining your sentence I must first identify what is called the starting point, that is a sentence which reflects the seriousness of your actions. I then adjust that starting point, move it up or down, to take account of factors personal to you, the type of thing Mr Fairbrother has referred to, that might call for a lesser or higher sentence than the starting point first identified. As a final step, credit is to be given where there has been a guilty plea and I will come back to that point.

[13] In making my assessment I have to bear in mind the purposes and principles set out in the Sentencing Act 2002 and they are things such as to hold you accountable for what you did and to encourage you to take responsibility for it and to take account of the needs of your victim, and to deter you and others – and I think here it is more others than you – from offending of a similar nature.

[14] In making my assessment, I will consider your pre-sentence report, the victim impact statement provided by Mr Greening and the letters in support from your family that I have received about you.

Victim impact statement

[15] Mr Greening’s victim impact statement speaks of the immediate and ongoing effect his injuries have had on him. He was initially off work for six months, and needed extensive rehabilitation. He continues to have ongoing effects, including loss of flexibility and strength in his body, and pain. These events have also impacted badly on his sleeping habits and on his social life more generally. His scars are a permanent reminder of your attack on him. Mr Greening’s victim impact statement confirms the very serious harm you caused him.

Pre-sentence report

[16] Your pre-sentence report records that you are affiliated with Ngāti Porou and the Takitimu Marae in Gisborne. You have a close relationship with your whānau and were living with your mother and two younger siblings at the time of this offending.

[17] You are, or have been, a patched member of the Wairoa Chapter of the Mongrel Mob, of which your father is, or was – I am not sure – a senior member. You have obviously grown up in a difficult environment. You joined the gang when you were young because a lot of your family were members. I accept, as you told the report writer, that you are now trying to move away from that influence.

[18] You have only a small number of relatively minor offences in the past. You were working at the time of this offending. Notwithstanding, therefore, a difficult environment within which to grow up, you have largely kept clear of the law.

[19] You say that your actions on the evening in question were impulsive and driven by feelings of jealousy when you came upon Mr Greening at your ex- partner’s home. I think you accept that, even if they were, that did not make them less serious.

[20] You told the report writer you accepted full responsibility, and that you could only blame yourself for what had happened and I accept those expressions from you.

Letters in support

[21] Your mother writes on behalf of your immediate family. She acknowledges you have made mistakes in your life but you have generally tried to correct them with support from your parents. She comments how out of character this very serious offending was. Her letter confirms the love and support that you have from your parents and your immediate family and it was signed by your mother and your father, your two brothers and your sister. Your uncle has written in similar terms.

[22] So although they are not here this morning, they do support you.

[23] I accept what I have been told by the people who have written to me on your behalf.

Sentencing discussion

[24] I turn now to the sentence.

[25] Sentences for wounding with intent to cause grievous bodily harm are determined by an assessment of the seriousness of that offending. Sentences come within three bands. Band One, for the least serious offending, is from three to six years’ imprisonment. Band Two, for offending of what you might call middling seriousness, is from five to ten years’ imprisonment. Band Three, for the most serious, is from nine to fourteen years.

[26] The seriousness of particular offending is to be determined by reference to a range of aggravating factors. These include such things as extreme violence, the use of a weapon and attacks to the head. Band Two sentences are appropriate where two or three of those aggravating features are present. Band Three sentences where three or more of those aggravating features are present.

[27] For you, Mr Fairbrother in his written submissions somewhat optimistically suggested that only two or three of those factors applied to you. On that basis, he suggests a sentence within Band Two.

[28] For the Crown, Mr Walker has identified five, including that of home invasion. The Crown says that the appropriate starting point is at the upper end of Band Three.

[29] I have to say by my assessment, the following aggravating factors are present:

(a) Your offending was premeditated. (b) You used a lethal weapon, a knife.

(c) You caused serious injury.

(d) Your victim was vulnerable, in that at the outset of your attack he was asleep.

[30] The Crown submits that your offending may be seen as a serious domestic assault, or akin to it, involving a home invasion, and that therefore, as the Court of

_{Appeal has said, a sentence at the top of Band Three is called for.}¹

_{For his part,}

Mr Fairbrother has submitted that whether or not this offence is regarded as a home invasion will depend upon my assessment of the evidence.

[31] I acknowledge that what happened here is different to the more common understanding of home invasion. Nevertheless, I do think home invasion is an aggravating factor. You had visited earlier in the evening, and clearly had been welcome or at least there was no sense of trouble in your being there at that point in time. But when you returned in the early hours of Sunday morning, you went there for an unlawful purpose. That was not a purpose for which you were allowed on the property. You did violate the sanctity of Ms Le Geyt’s home, and her right to safety

_{whilst sleeping there.}

[32] Whilst your offending was in a domestic context, your victim was not your partner. For that reason, I do not think a sentence at the top end of Band Three is called for.

[33] On that basis, I consider the appropriate starting point sentence to be

11 years. That is, towards the middle of Band Three.

[34] I turn now to aggravating and mitigating factors personal to you.

[35] There are no aggravating factors. You do have a number of criminal and traffic convictions but these are of a relatively minor nature.

_{[36] I turn then to mitigating factors.}

¹ R v Taueki [2005] 3 NZLR 372 (CA) at [41].

[37] Mr Jury, you are 25 years old. I have already noted that, notwithstanding what I consider to have been a difficult environment in which to grow up, you would appear to have lived a generally law-abiding life. As I have just observed, you have previously appeared before the Courts for relatively minor offending on a number of occasions:

(a) some disorderly behaviour;

(b) breach of a local liquor ban; and

(c) some driving and a wilful damage charge.

[38] For that offending you received sentences of community work, reflecting the Court’s assessment at the time of the culpability of that type of offending, and your compliance with the terms of those sentences was positive.

[39] Mr Fairbrother, in his submissions to me this morning, has also emphasised the difficult environment within which you have grown up and, given your efforts to distance yourself from that environment, your prospects of rehabilitation.

[40] I am prepared to recognise that and to give you the credit I think I can to the maximum extent. In my view a credit of one year is appropriate in recognition of those factors.

[41] So that, at that point, reduces your starting point sentence to one of 10 years.

[42] I turn now to the question of whether or not your willingness to plead guilty in December 2012, almost immediately after you were arrested, to the charge on which you were ultimately found guilty, wounding with intent to cause grievous bodily harm, should count as a mitigating factor here.

[43] Mr Fairbrother says it should: he says it shows remorse and that your plea of not guilty was brought about by the Crown’s decision to charge you with attempted murder.

[44] For the Crown, Mr Walker says that no credit should be available: you could have pleaded guilty to the alternative charge of wounding with intent to cause grievous bodily harm. You did not, and advanced a positive defence which challenged the evidence given by Mr Greening and Ms Le Geyt.

[45] Generally, an early guilty plea will reduce a sentence by 25 per cent. Moreover, the Court of Appeal has held that an offender who is willing to plead to a lesser charge should not be disadvantaged by the fact that the prosecution chooses to

_{proceed to trial on a more serious charge that results in an acquittal but a conviction}

on a lesser charge.²

_argument.

That is what happened here, and supports Mr Fairbrother’s

[46] It has also been accepted by this Court that a defendant should not be inhibited from fully defending the charges if the Crown chooses to proceed with, in the alternative, a more serious charge.³

[47] The reason for allowing a guilty plea discount, in a situation where the defendant would have pleaded guilty to the charge on which he or she is eventually convicted, is to recognise that the expense of the trial and the difficulties for the victims associated with that were not matters within the defendant’s control. As the Court of Appeal has emphasised, that is not to criticise the Crown for bringing the more serious charge. The fact remains, however, that the defendant had offered to plead guilty to a charge which the jury found to be the appropriate measure of culpability. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.

[48] By my assessment, those considerations are not affected materially where, the defendant’s offer to plead guilty having been rejected, the defendant chooses not to

_{plead guilty to the lesser charge at trial and to run a defence to both charges.}

² _{Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [40].}

3. In R v Fallow HC Invercargill CRI-2008-025-3614, 14 December 2009, Miller J gave a substantial guilty plea discount to a defendant who indicated early a willingness to plead guilty

to the charge on which he was eventually convicted (at [35]). As here, the defendant attempted to escape liability entirely by pleading self-defence at the trial, but this was seen as not detracting from the principle that credit should be given to a defendant whose decision to go to trial is vindicated by a verdict which only finds them guilty of the charge on which they had expressed a willingness to plead guilty (at [35]).

Notwithstanding a plea of guilty to the lesser charge, the trial would have proceeded in any event. A defendant who pleads guilty is entitled to reasonably dispute facts and the admissibility of evidence without losing the benefit of that guilty plea. The position here is not dissimilar. It was not, in my view, unreasonable for Mr Jury to defend the attempted murder charge as best as he was able and, in that context, to plead not guilty to the alternative charge.

[49] I therefore conclude, Mr Jury, that your early willingness to plead guilty is to be given the credit of a 25 per cent discount.

[50] That is a discount of two and a half years and it reduces the sentence of

10 years that I have previously arrived at to one of seven and a half years, that is seven years and six months.

[51] Mr Jury, I therefore sentence you to seven years and six months’ imprisonment. The sentence reflects the seriousness of what you did, it has been reduced to take account of your remorse and your guilty plea and I do encourage you to keep trying to go down the road that I accept you have been trying to go down in your life, until this very unfortunate event occurred.

[52] Thank you Mr Jury, you may stand down.

“Clifford J”

Solicitors:

Crown Solicitor, Napier for the Crown.