R v Walker [2016] NZHC 1076 (23 May 2016)

Last Updated: 26 December 2018

NOTE: PUBLICATION OF NAME, ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-3797 [2016] NZHC 1076

THE QUEEN

v

LANCE TE MANAWA WALKER

Hearing:	23 May 2016
Appearances:	N Tahana for the Crown H S Edward for the Defendant
Sentence:	23 May 2016

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:

N Tahana, Crown Solicitors, Rotorua

H Edward, Harry Edward Law, Rotorua

R v WALKER [2016] NZHC 1076 [23 May 2016]

Introduction

[1] Mr Walker you appear for sentence today having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm and one of breach of a protection order. The wounding with intent charge carries a maximum penalty of 14 years of imprisonment. In the circumstances of the attack it is perhaps fortunate that you are not facing even more serious charges today.

Facts

[2] You have a long and violent history with your ex-partner, who is the victim of the assault for which you are being sentenced. She is currently 50 years of age. You had been in a relationship with her for about 10 years and you have a son together. Sadly, this was not the first occasion of violence against the victim; indeed as early as 2008 she was granted a protection order against you in the Rotorua Family Court.

[3] On Wednesday 23 December 2015 you finished work early and began consuming alcohol with workmates. You arrived at the victim’s home at about 1 am, yelling at her to open the door, which she did. You then accused her of having another male in the house which caused her to fear for her safety. She escaped into the street with her cell phone to call for the police.

[4] You armed yourself with an approximately 25cm knife which you found in the kitchen of her home and you followed the victim into the street. You called her, among other things, a “bitch” and “dog shit”. You yelled Black Power slogans at her. The victim tried to run from you but then turned to face you, begging you to stop. You grabbed her by the throat hard enough to restrict her breathing and forced her to the ground. You continued abusing her, yelling gang slogans and calling her a slut.

[5] While you held the victim down on the ground with your body weight you aimed the blade of the knife at her face. She wrestled the knife off you by grabbing the blade with her bare hands causing deep lacerations to them. She had the strength, in the extremity of that moment, to snap the blade off the knife. You then stabbed her
three to four times in the head with the broken butt and blade of the knife. The victim believes, I consider genuinely, that if she hadn’t managed to snap the blade off you would have stabbed her in the face with it. Throughout this horrifying ordeal she was trying to block your blows and kick you off.

[6] You then released the victim and started dragging her back towards the house by her legs. You said that you were going to “kill you bitch”. You then stomped on her face while she was lying on the ground.

[7] Thankfully, while trying to drag her along the road her track pants ripped off and she had the presence of mind to make her escape, sprinting up the road and hiding in a driveway behind a tree. Throughout the attack she genuinely believed that you were going to kill her.

[8] After the victim made her escape you returned to her house and began destroying property that belonged to her.

[9] As a result of your attack she received lacerations of up to 4 mm in depth on her hands, stab wounds to her head as well as bruising and swelling to her face. The police photographs taken on the night of the attack, and which I have reviewed, testify to the ferocity of it.

Victim Impact Statement

[10] Before I sentence you Mr Walker I want to acknowledge the victim albeit that she hasn’t considered it possible to be present in court today. That absence is totally understandable. I want to acknowledge her because, despite the traumatising events of 23 December 2015, she has, through strength of character and motivated by the love of her children, including your mutual son, made a remarkable recovery. I was deeply moved by her victim impact statement where she details the effect of the offending on her and her wider whanau including your son and her other children. She recalls that whenever you had been drinking you would become violent and threatening. You have been separated for some time and only because of her concern for you following the death of your mother and commitments she made to your mother while alive to look out for you, did she permit you to reside temporarily in her home. I accept Ms
Tahana’s submission that you abused the privilege and trust that was placed in you and which was only extended because of the deep respect which the victim had for your late mother.

[11] You were, however, paranoid that she was seeing other men despite the fact that she was no longer in a relationship with you and had every entitlement to, if that was her wish. As a matter of fact, however, she was not. Nevertheless your paranoia about the issue continued. She became increasingly concerned over the months that you resided at the house for the safety of herself and your son. Those concerns proved entirely justified when on 23 December you embarked on what could only be described as a drunken and violent rampage.

[12] Since your imprisonment she says that there have been acts of vandalism to her property. These cannot be attributed to any gang affiliations which you have. There is simply no adequate evidence of it. However, it appears a most regrettable coincidence.

[13] Despite all of the emotional and physical harm which you inflicted on this woman, without you in her life, she has started to piece it back together, to retrain and re-establish the social network which fell away because of your presence in the home. I commend her for that and wish her well in her recovery.

Personal circumstances

[14] Before I sentence you I make some brief observations about your personal circumstances. You are 36 years of age and living in Rotorua. You are of the Te Atiawa Iwi. You clearly have very irresponsible attitudes to alcohol consumption which exacerbate what the pre-sentence report identifies as a propensity for violence and a sense of entitlement. At the time of your interview you intimated that the victim may in part have been responsible for your actions that evening. That intimation concerned me greatly. I acknowledge Mr Edward’s observation that the report was prepared following a telephone interview only. I would have appreciated better exploration of the issues of alleged entitlement and remorse which in my respectful view may have been more accurately assessed following an in person interview. It is
said that on the occasion of your telephone interview you maintained that you are “not that sort of person” and the author suggests you had little insight into your offending or the harm that you had inflicted on the victim.

[15] Because of those observations I took the somewhat unusual step this morning of inviting you to address me on those issues. As I will refer to subsequently in my sentencing notes, I accept that as you face your sentence today you have genuine remorse for what occurred that evening and this will be reflected in the sentence I will ultimately impose.

Purposes and principles of sentencing

[16] I now turn to the sentencing process. Sections 7 and 8 of the Sentencing Act 2002 require me to have regard to a number of purposes and principles of sentencing. In this case, I consider that the primary purpose of sentencing is to hold you accountable for the harm done to the victim, and to denounce your conduct. Domestic violence, in all its forms, is simply a scourge on our communities and our society. As the television advertisements say, “it is not okay”. Judging by your long history of violence towards women you clearly exhibit the very attitudes of possession and control which all too frequently result in violence towards and even the death of women in this country. Such attitudes simply have no part in contemporary New Zealand society. When accompanied by the level of violence exhibited in this case they must attract the strong denunciation of this court.

[17] The most relevant principles of sentencing are the need to take into account the gravity of offending, and your level of culpability. On the other hand, I must bear in mind the need to achieve consistency talking into account sentencing levels imposed in analogous cases and to impose the least restrictive outcome that is appropriate in the circumstances.

Approach to sentencing

[18] The approach I adopt to sentencing will be one very familiar to your counsel whereby I adopt a starting point recognising all the aggravating (and any mitigating) factors of the offending. I will then make appropriate adjustments for features that are
personal to you. Finally, I need to turn my mind to the level of discount appropriate for your timely guilty pleas.

[19] In the leading case, R v Taueki,¹ the Court of Appeal established three sentencing bands (or ranges of starting points) for offences involving grievous bodily harm:²

(a) Band one: 3-6 years’ imprisonment;

(b) Band two: 5-10 years’ imprisonment; and

(c) Band three: 9-14 years’ imprisonment.

[20] Determining what band your offending falls into requires me to consider any aggravating and mitigating factors, as identified by the Court of Appeal, that are applicable to your particular offending.³

[21] Band 1 is for offending involving violence at the lower end of the spectrum. Band 2 is usually appropriate for offending where two or three of the aggravating features identified by the Court of Appeal are present.⁴ Finally, Band 3 is usually appropriate where three or more of the aggravating features are present or where the combination of the features is particularly grave.⁵ The bands, however, are to be applied flexibly. I must assess the gravity of each of the factors that are relevant in your case and take an overall view of your offending.

Crown submissions

[22] The Crown submits that, based on the number of aggravating factors present here, this case falls at the upper end of Band 2 of Taueki, attracting a starting point of between 9 and 10 years’ imprisonment. The Crown cites as aggravating features:

¹ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

² At [9].

3. The list of aggravating and mitigating factors can be found at [31] and [32] of R v Taueki, above n 1.

⁴ At [38].

⁵ At [40].

(a) Extreme violence;

(b) Use of a weapon;

(c) The injuries inflicted on the victim;

(d) The fact that the attack was made to her head; and

(e) An element of premeditation.

[23] Turning to the second phase of the sentencing the Crown suggests an uplift for previous convictions of between six and 12 months. Those convictions include three charges of male assaults female and two charges of breaching a protection order. Particularly relevant in this case, says the Crown, is the fact of previous offending against this victim.

[24] The Crown does not accept you merit a discount for remorse, on the basis of attribution of part blame on the victim and your lack insight into your offending. It does, however, accept that you are entitled to a generous discount to reflect your early guilty plea.

Defence submissions

[25] Mr Edward submits that the case is at the upper end of Band 2, requiring a starting point of 8 – 9 years. His was a very responsible submission, having regard to the nature of the offending and I note that there is actually very little difference between the Crown and the Defence in terms of starting point. He accepts the aggravating features included:

(a) The seriousness of the injury;

(b) The use of a weapon (knife);

(c) The fact that the attack was to the victim’s head; and
(d) Her vulnerability.

[26] He particularly highlights your remorse and early guilty plea.

Analysis

[27] I consider that your offending exhibits the following aggravating features identified in Taueki:⁶

(a) Use of weapons – the Court of Appeal has said that the use of a lethal weapon, like the knife you used in this attack, is a “seriously aggravating feature”.⁷

(b) Extreme violence – I consider that the level of violence in this case can fairly be characterised as extreme.⁸ While the victim was on the ground you knelt over her as she was attempting to defend herself by holding the bare blade of the knife. You stabbed her in the head three to four times with the broken shaft. You stomped on her head and dragged her along the road by her ankles. There were contemporaneous threats to kill the victim which must have made the ordeal even more terrifying for her.

(c) The attack to her head – your assault was not only sustained and vicious, you repeatedly stabbed the most vulnerable part of her body, her head and then you stomped on it.⁹ I consider that a particularly aggravating factor.

(d) Serious injury – the victim suffered stab wounds to her head and a number of lacerations to her hands as she desperately tried to defend herself from you. She sustained severe facial bruising from the punches you delivered to her.¹⁰ The medical evidence indicates deep lacerations

⁶ R v Taueki, above at [31].

⁷ At [31](d).

⁸ At [31](a).

⁹ At [31](e).

¹⁰ At [31](c).

to her hands, arms and head as well as bruising to her face and a haemorrhage. None of the injuries were life threatening, although that may be considered particularly good fortune given that you chose to attack her head. She could so easily have been blinded. Long term scarring to her face is inevitable to say nothing of the emotional scars you have inflicted on her, the mother of your child.

(e) Vulnerability of the victim – the Court of Appeal has pointed out that breaches of a protection order made in favour of the victim is a particularly aggravating factor.¹¹ In this case there is a longstanding protection order.

(f) Premeditation – this factor is present to a limited but nevertheless identifiable extent. It is not a case where you momentarily lost control or lashed out.¹² You had been brooding for a number of weeks on the fact that you thought the victim had a new partner. The fact that you pursued her for as long as you did down the street is further evidence of your determination to harm her.

[28] The Crown submits that there are no mitigating factors in respect of your offending. I must agree with that assessment.

[29] As indicated, the Crown submits that your offending is at the upper end of Band 2 warranting a starting point of between 9 and 10 years. In Taueki the Court of Appeal gave the following guide in terms of the characteristics of a Band 2 assault:

Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

¹¹ R v Taueki, above n 1, at [31](i)

¹² At [31](b).

[30] In my assessment, having regard to the number of aggravating features present, your offending does fall at the upper end of Band 2. I consider it warrants a starting point of nine years imprisonment. I reach that conclusion mindful of a number of cases which I will collect in an appendix to these sentencing notes but which I need not detail further now. Only the limited amount of premeditation prevents the case, in my assessment, from falling within Band 3, having regard to the number of aggravating features which I have identified.

Aggravating and mitigating factors personal to Mr Walker

[31] I now turn to factors personal to you. You have a history of violence against women as I have already referred to. You have convictions for breaching a protection order, two charges of injuries with intent to injure and three charges of male assaults female. I consider this to be an aggravating feature.

[32] In most cases an offender’s previous convictions, if recent and relevant, will command an uplift on the starting point that the Court would otherwise adopt. However such uplifts, although common, are typically relatively restricted in scope – the aim being not to punish you once again for previous offending but to impose a measure of prevention and deterrence in respect of future offending.¹³

[33] The following principles emerge from the cases:

(a) The Court’s task, as ever, is to impose a sentence appropriate to the offending and the circumstances of the offender;¹⁴

(b) The sentence must primarily reflect the offending that the Court is sentencing for;¹⁵

(c) The offender’s previous convictions are relevant¹⁶ as are aspects of deterrence and protection of the community;¹⁷ and

¹³ R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 (CA) at 597.

¹⁴ R v Taueki, above n 1and R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 (CA) at [63].

¹⁵ Sentencing Act 2002, s 8(a).

¹⁶ Sentencing Act 2002, s 9(1)(j).

¹⁷ Sentencing Act 2002, s 7(1)(f) and s 7(1)(g).

(d) Care should be taken in order to avoid any notion of double punishment.¹⁸

[34] Overall, I consider a modest uplift is appropriate. Most of the previous offending was 10 years ago and did not involve criminality as serious as you are facing today. However, there is a clear pattern of violent offending against women and this victim in particular, and that pattern and the underlying attitudes it reflects, requires particular deterrence from this Court. I impose a six month uplift taking the starting point to 9 years and 6 months imprisonment.

[35] I note that Mr Edward responsibly accepts that this is a case where an uplift is appropriate.

[36] Mr Edward then submits that you should receive a discount for remorse. The Supreme Court has confirmed that if, on a robust evaluation of all the circumstances, genuine remorse has been shown by a defendant, credit should be given in addition to that for their guilty plea.¹⁹ I note that you wished to have the opportunity to apologise to the victim through a restorative justice conference. For understandable reasons she has indicated that she does not wish to participate in such a conference but the offer or your participation is noted and relevant to the assessment of remorse that I undertake.

[37] The Probation Officer assessed you as being remorseful although suggesting that you continued to minimise aspects of your offending and that you lacked insight into the victim’s position. However, as a result of the exchange which I have had with you today my assessment is that you do now genuinely recognise the enormity of what you did that evening, the consequences for the victim and the dishonour that you have brought to yourself and your family. It is a particularly unfortunate feature of what occurred that, whereas you were previously in employment with the prospects of a future, you must now inevitably face a lengthy period of imprisonment. However, I accept that your remorse goes beyond simply concern for your own circumstances and genuinely captures your deep regret for what occurred that evening.

¹⁸ R v Ward [1976] 1 NZLR 588 (CA) and R v Columbus [2008] NZCA 192 at [15].

¹⁹ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]- [64].

[38] In my view a five per cent discount is appropriate to reflect that.

[39] Finally, Mr Walker, I come to the discount for your guilty plea. I accept that this was made at the earliest reasonable opportunity and in those circumstances I am prepared to allow the highest discount available, which is 25 per cent.

[40] Mr Walker, would you now please stand.

Result

[41] On the charge of wounding with intent to cause grievous bodily harm you are sentenced to six years and eight months imprisonment.

[42] In respect of the breach of protection order you are sentenced to three months’ imprisonment to be served concurrently with the previous sentence.

[43] I make orders that the identity of the victim or any details leading to her identification are to be suppressed.

Muir J

Appendix – relevant cases considered in setting the starting point

[44] In R v Grey,²⁰ the victim ended her relationship with the defendant and was in the process of moving out of the house with her three children. In the victim’s car and then in the driveway, the defendant assaulted her, repeatedly punching her in the head. The victim ran into the house and the defendant followed her in. He stabbed at her head with a fork, left the house then returned and stabbed the victim twice in the chest with a knife. He then continued to punch her around the head and body:

[The victim] sustained life-threatening injuries, including a stab wound on the right side of her chest, another stab wound to her left breast, damage to her lower and upper teeth, pain in her neck, back and right shoulder, cuts to her left shoulder, a cut to her right hand, a rib injury and a bruised and swollen head and face. She was bleeding internally near the aorta artery. She was advised that she would require further surgery relating to this.

[45] Duffy J considered the aggravating factors were extreme violence and attacks to the head, serious injury, use of a weapon, vulnerability of the victim (as a woman and someone who had previously been in an intimate relationship with him) and home invasion. She was prepared to accept that there was no premeditation. She considered the offending was at the upper most level of band two and adopted a starting point of “between nine to 10 years’ imprisonment”.

[46] In R v Walker²¹ the offender called the victim and invited her to his house before attacking her with a knife. He inflicted at least 15 stab wounds to the upper part of her body. The Court adopted a starting point of 10 years imprisonment.

[47] In Wairau v R. Mr Wairau’s partner of 11 years had left him and taken the children to live with another man.²² He drove to the new partner’s property, broke into the house and stabbed the partner in the chest causing a 4 cm deep stab wound. He then dropped the knife and kicked and punched the victim. On the lead charges of wounding with intent to cause grievous bodily harm and the aggravated burglary the sentencing Judge adopted a starting point of 11 years’ imprisonment as she saw it

²⁰ R v Grey [2014] NZHC 789.

²¹ R v Walker [2015] NZHC 3214.

²² Wairau v R [2015] NZCA 215.

falling squarely within Band 3 of Taueki. This starting point was upheld by the Court of Appeal.

[48] In R v Fotuaika²³ the offender and his partner of 14 years had just separated. They had two young children who had been placed in the interim custody of their maternal grandmother. This greatly distressed the offender, who received residential treatment for depression. In the days leading up to the offence, he repeatedly tried to convince his partner to give him the children. After she refused, he went to her workplace with a steak knife in his car, having consumed alcohol. He confronted her and then returned to the car to fetch the knife. He attacked her with it, beginning with a blow to the head and eventually inflicting some 14 stab wounds to the back, neck, throat and chest, as well as defensive wounds to her hand. The offender ceased the attack after the victim told him she was dying. He then summoned help and attempted to comfort her. A starting point of nine years was adopted.

[49] R v Nelson²⁴ also involved an attack on a partner. In the middle of the night, the offender drove some distance to his partner’s mother’s house, where she was living at that time. He entered the house, and forced his partner out of her bedroom and into the living room. He then repeatedly hit her about the head with his fists. Her mother attempted to stop the attack by striking the offender over the head with a piece of wood. Seeing the opportunity, his partner attempted to run towards the back door but was unable to get out. The offender pulled a knife from a cutlery block and made a “frenzied” stabbing attack on the victim as she tried to run back past him. She collapsed to the floor but the offender continued stabbing her, inflicting eight wounds in total to her chest, neck and upper back. The victim’s youngest daughter witnessed the attack. The victim was left in a critical condition and had to be flown to hospital for emergency surgery. A starting point of 11 years was adopted.

[50] In R v Masoe the offender and his wife separated in bitter circumstances.²⁵ The offender found out that his wife had developed a relationship with the victim, a onetime minister at their church. This enraged him and he made various threats against

²³ R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008.

²⁴ R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005.

²⁵ R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006.

the victim’s life over a number of months. On the day of the attack, the offender went to his wife’s house but was not able to find her. He then drove around Porirua looking for her and suspecting she would be with the victim. When he eventually located the two of them, the victim saw him first and began to run away. The offender chased after him with a knife he had brought in his vehicle, and followed him for approximately 150 metres until the victim was overcome by asthma and collapsed. The offender stood over him and began attacking his head with the knife. The victim raised his arm to defend himself but quickly suffered a large laceration. The offender then continued to stab him several times in the back. Holding the knife with both hands, he then forced it deep into the victim’s neck, narrowly missing his jugular vein. A starting point of nine years was adopted.

[51] In R v O’Kane²⁶ the offender in that case had just been told that his partner wished to end their relationship. On the day of the offending, he confronted and harassed her several times. When evening came, he sat outside her house and waited for a male associate of hers to leave. He also slashed her car tires. Finally, the offender knocked on her back door under the pretext of wanting to apologise. When the victim opened the door, he burst into the house with a carving knife and knocked her over. He then began to stab her in a “frenzy” in the chest and abdomen, stating that he wanted her dead. She suffered a stab wound to the chest, seven to the abdomen and three to the back. Her liver, spleen and lung were also lacerated. Lang J would have adopted a starting point of 11 years or even 11 and a half years but for the offender’s history of alcoholism and depression. This convinced him to lower it to ten years and nine months.

²⁶ R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.