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R v S [2016] NZHC 1457 (30 June 2016)

High Court of New Zealand

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R v S [2016] NZHC 1457 (30 June 2016)

Last Updated: 24 August 2016


NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF PRISONER PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CRI-2014-092-14614 [2016] NZHC 1457

THE QUEEN



v



S



Charges:
Plea:
Wounding with intent (2); Kidnapping
Not Guilty
Counsel:
Y V Yelavich for Crown
M W Ryan for Prisoner
Sentenced:
30 June 2016




SENTENCING NOTES OF BREWER J
















Solicitors: Kayes Fletcher Walker (Auckland) for Crown

Counsel: Mark Ryan (Auckland) for Prisoner


R v S [2016] NZHC 1457 [30 June 2016]

Introduction

[1] S, you appear for sentence on one charge of kidnapping (the maximum penalty for which is 14 years’ imprisonment), one charge of disfiguring with intent to injure and one charge of wounding with intent to injure (both those charges have a maximum penalty of seven years’ imprisonment).

[2] You were found guilty of these charges by a jury. I will not go through the facts in detail other than to outline the basis upon which I will sentence you.

Facts

[3] You encountered the complainant when she was 17 years old and a runaway from State care. You were a 38 year old man living as a solo father. Almost immediately, the complainant moved in with you. You were in an intimate relationship with her for approximately five months. She had no income and she was dependent on you to a large extent both physically and emotionally.

[4] The complainant was a troubled young woman. She had a history of self- harm and she continued to self-harm while she was living with you. You were aware also of her other mental health issues.

[5] Shortly before Christmas 2014, you decided that the complainant had been sexually abusing your daughter by touching her. Initially, the complainant denied doing any such thing. However, you would not accept the denial and, as the complainant said in her evidence, drilled her and drilled her until she made an admission.

[6] You were very angry and you threatened to throw her out. The complainant did not want the relationship to end, and eventually you said that she could stay so long as she consented to you breaking her right index finger. That was the finger you had decided had touched your daughter. I accept that the complainant agreed to having her finger broken by you. That was so you would let her stay with you. You went and got a paving brick and the complainant put her finger on it. You got a hammer. You got her to put a gag in her mouth to stifle the screams which you

expected would result. She covered her eyes and you put on a favourite Judge Dredd song and told her that sometime during the playing of the song you would break her finger with the hammer. The complainant knew that you would break her finger with the hammer and that it would hurt a lot. But she was willing to pay this price to enable her relationship with you to continue.

[7] You did break her finger with the hammer. It was a single blow and it caused a wound which bled profusely. Two finger bones were broken and displaced. The pain was intense and the complainant was screaming. You calmed her down and called an ambulance. The complainant required surgery to realign the finger bones and she was kept in hospital overnight. She then returned to your home with the expectation that having been punished life would resume as normal. It did not.

[8] You decided, after a day had passed, that the complainant’s offending against your daughter was more serious than you had at first thought. So, you decided to punish her more severely. The jury rejected or was uncertain of a lot of what the complainant said you did to her in the days that followed. Essentially, the offences of which you were convicted were those where there was substantial corroborative evidence. For the purposes of sentencing you now, I take into account only the necessary background to the offences which the jury found proved.

[9] You went out and bought cable ties. In my view, that was for the purpose of detaining the complainant by immobilising her with the cable ties.1 You did bind her with the cable ties. I do not know how long she was tied up. But it was not for a fleeting period of time. I accept the evidence of your daughter that at one stage the complainant was made to hop into the living room and was there for some time.

[10] I also accept that it was around this period (but I cannot say during this period) that you disfigured the complainant. You decided to punish her by extracting teeth using pliers. To overcome the natural resistance of the complainant, you threatened to knock her out with a hammer if she resisted. You attacked her teeth

with the pliers causing considerable and disfiguring damage to two of them. Pieces


  1. For the record, whenever I express a view of the facts, I do so having decided beyond reasonable doubt that they are made out: see R v Robertson [2016] NZCA 99.

of the teeth kept breaking off, but you did not succeed in pulling either of the teeth out. Having failed to succeed with one pair of pliers, you went away and got another pair but the results were no greater. The forensic dentist who gave evidence talked about the great force and pressure that you would have had to have exerted to cause the damage that he observed.

[11] I have no doubt at all that you caused the complainant considerable pain over a period of time that was not fleeting.

[12] The complainant’s victim impact statement tells me that she has lasting physical effects from what you did to her. Her finger is bent and it continues to hurt. Her teeth have required considerable dental restoration and will never be the same. Her already fragile mental health has been further damaged.

Starting point

[13] In sentencing you, I first have to adopt a starting point which takes into account the actual offending you committed. I then adjust the starting point up or down to take into account circumstances personal to you. Finally, I stand back and look at the overall sentence to determine whether it is appropriate having regard to the totality of your offending.

[14] I will take as the lead offence the charge of kidnapping. But because the detention was around the same period as the disfiguring, I will combine my consideration of the kidnapping charge with my consideration of the disfiguring charge relating to the complainant’s teeth.

[15] The Crown suggests a starting point of five-and-a-half years’ to six years’ imprisonment for these charges. Your lawyer argues for a starting point of between three years nine months and five years’ imprisonment. I will not discuss the cases that they have set out and which I have considered, but I will list them in my written

sentencing notes.2


  1. R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109; R v Hayes CA171/06, 20 July 2006; R v Martin [2013] NZHC 2675; Nuku v R [2012] NZCA 584; Solicitor-General v Nahu CA309/98, 28 October

1998; R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627; Solicitor-General v Green CA179/99, 29 July 1999.

[16] I find the aggravating features of your offending to be:

(a) The extent and nature of the violence you used. It was particularly cruel. The level of force you used and the pain that you caused makes your offending cruel and degrading.

(b) Use of a weapon. You used two pairs of pliers to damage the complainant’s teeth and, because you did so, there was the damage caused that I heard evidence about at the trial.

(c) Vulnerability. The complainant was particularly vulnerable. There was the age disparity and the fact she had no income and was living in your house in an intimate domestic relationship with you. She had a history of self-harm and of difficulties with mental health and you knew that.

(d) Premeditation. I accept from the evidence that you went to Bunnings Warehouse to buy the cable ties having decided to use them to bind and detain the complainant as part of her punishment.

(e) Revenge. Your motive for kidnapping and disfiguring the complainant was to get revenge for what you considered to be the complainant’s abuse of your daughter. You were punishing her over an extended period of time.

(f) Harm caused to the complainant. I have set out what the complainant reports in her victim impact statement. Manifestly, you have caused her serious and enduring harm.

[17] Having considered the cases and looking at the charges of kidnapping and disfiguring together, I adopt a starting point of five-and-a-half years’ imprisonment.

[18] I now come to the charge of wounding with intent to injure which relates to the breaking of the finger. I do not consider the consent of the complainant to be a significant mitigating factor. Any mitigation is more than cancelled by the

surrounding circumstances. All of the aggravating factors I have just gone through apply to this charge.

[19] As you know, you defended the charge initially on the basis that the complainant had consented to the injuring. I decided, and I have given you my reasons for my decision, that the law does not allow a consent defence to that sort of injury.

[20] I agree with the Crown that if I were sentencing you for this act alone, I could adopt a starting point of three years’ imprisonment. However, I consider that it was a part of the series of events which occurred in the period of days from 21 December

2014 to 24 December 2014 and so I will impose a concurrent sentence. I will address the offending by uplifting the starting point by one year’s imprisonment. That results in an overall starting point of six-and-a-half years’ imprisonment.

Mitigation

[21] You have a reasonably extensive criminal record. But there is only one conviction for violence and that was a minor conviction in 1995. I will not increase the starting point because of your criminal record. But neither will I give you credit for good character.

[22] I do not accept that you show any remorse. You continue to deny responsibility for the kidnapping and disfiguring charges. You justify the breaking of the finger by the consent of the complainant. Accordingly, there is nothing in your personal circumstances to justify a reduction of the starting point.

[23] I stand back and look at whether a sentence of six-and-a-half years’

imprisonment properly reflects your overall criminality.

[24] I have regard to the purposes of sentencing which I have taken into account in reaching the sentence. They are to hold you accountable for the harm you have done to the complainant, to promote in you a sense of responsibility for and acknowledgement of that harm, to denounce your conduct and to deter you and

others from committing similar offending, as well as to protect the community from you.

[25] I have regard to the context in which I have to give effect to these purposes. Domestic violence is far too common in New Zealand. Far too frequently, the victims are vulnerable females. Disparity of power and the exploitation of that power are common factors and they are present here. Punishment and expiation are thematic of the disparity and the vulnerability.

[26] Your offending against the complainant started with the breaking of the finger and resumed a day or so later with the detaining and disfiguring. The effects of your offending are ongoing.

[27] Overall, I consider that a sentence of six-and-a-half years’ imprisonment is in

keeping with the overall criminality of your offending.


Sentence

[28] On the charge of kidnapping, you are sentenced to six-and-a-half years’ imprisonment. On the charge of disfiguring with intent to injure, you are sentenced to five years’ imprisonment. On the charge of wounding with intent to injure, you are sentenced to three years’ imprisonment. These sentences will be served concurrently with each other, which means that your total effective sentence is six- and-a-half years’ imprisonment.

[29] Finally, there was one charge of threatening to do grievous bodily harm upon which the jury could not agree. The Crown does not intend to bring further evidence on that charge and I discharge you on it, which has the effect of an acquittal.

[30] You may stand down.








Brewer J


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