R v Job [2018] NZHC 2543 (28 September 2018)

Last Updated: 4 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-9967 [2018] NZHC 2543

THE QUEEN

v

NEVILLE JOHN JOB

Hearing:	28 September 2018
Appearances:	M S Williams for the Crown M N Pecotic for the Defendant
Sentencing:	28 September 2018

SENTENCING BY PALMER J

Counsel/Solicitors:

Kayes Fletcher Walker, Crown Solicitor, Manukau Ms M N Pecotic, Barrister, Auckland

R v JOB [2018] NZHC 2543 [28 September 2018]

Introduction

[1] Mr Neville Job, aged 40 of Ngāti Kahu, pleaded guilty to one charge of wounding with reckless disregard for the safety of his then-partner in August 2017. The offence carries a maximum penalty of seven years’ imprisonment.¹ I sentence him today.

Approach to sentencing

[2] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In this case, I have particular regard to the purposes of holding Mr Job accountable for the harm done to the victim and community; promoting in him a sense of responsibility for, and an acknowledgement of, that harm; providing for the interests of the victim; denouncing Mr Job’s actions; protecting the community from him; and assisting in his rehabilitation and reintegration. I take into account, in particular, the gravity of the offending and degree of Mr Job’s culpability, the desirability of consistency with sentences for similar offending; the effect of the offending on the victim; and I impose the least restrictive outcome that is appropriate in the circumstances.

What happened?

[3] Mr Job, you were in an “on and off” relationship with the victim for five or six years. You say it was an abusive relationship and has ended. The statement of facts on which you pleaded guilty records that, on 27 August 2017, you were drinking with a friend of yours at a motel in Manukau where your then-partner was staying. An argument started between you and your partner, the victim of this offending. She asked you and your friend to leave and the two of you went to the games room. Later she confronted you there but returned to her motel room. You banged on the front door, then entered through the back door. A knife was produced. The two of you struggled over it. You pushed her backwards onto her bed and forced the knife into the right side of the back of her head.

¹ Crimes Act 1961, s 188(2).

[4] Your friend tried to restrain you. The victim kicked at you and ran to the carpark. You ran after her yelling “come here bitch” or words like that. You grappled with her on the ground, and would not be pulled off by your associate. A second knife was involved. That was not clear who initially carried that. You dragged her towards the car, put her in the backseat and climbed in on top of her. There was another struggle over the knife. She suffered cuts to her upper left arm, chest and right thumb. You suffered a cut to your upper right arm. The Police were called and found you on top of her in the back of the car. Her face was covered in blood and the knife was lying on the seat next to her head. The victim spent three days in hospital with blood loss and a nine centimetre laceration and temporary indentation to the back of her head. She was unable to work for at least a month. She now feels she can move on with her life.

Starting point

[5] Mr Job, in sentencing you, I first set a starting point to reflect the seriousness of the offending. There is no guideline judgment for this offence. But counsel have made submissions based on comparable cases.

Submissions

[6] Mr Williams, for the Crown, submits this was a particularly nasty incident and the aggravating factors are: serious injury; attack to the head; and use of a weapon. He notes you pursued the victim and continued the attack after she ran away. He submits the offending here is similarly serious to Grimshaw-Jones v R, in which the Court of Appeal approved a starting point of two years and eight months’ imprisonment, and similar to, if not more serious than, the offending in R v Middlemiss, where a starting point of three years’ imprisonment was adopted in the High Court.² Mr Williams acknowledges the relationship between you and the victim was clearly fraught with difficulties. The Crown submits a starting point of imprisonment of between two years and eight months and three years is appropriate.

² Middlemiss v Police HC Dunedin CRI-2009-412-38, 11 February 2010; Grimshaw-Jones v R

[2010] NZCA 490.

[7] Ms Pecotic, for you Mr Job, accepts the attack on the head was an aggravating factor but says the victim was not so vulnerable given the context of a relationship characterised by excessive drinking and mutual violence. She submits the starting point is discretionary in the absence of a guideline judgment. She emphasises the history of previous violent assault by the victim on you. She submits a starting point of 18 months’ imprisonment with reference to what she submits are comparable cases.³

Decision on starting point

[8] Mr Job, I consider your attack was sustained and highly reckless. It was not spontaneous. You entered the victim’s motel room to attack her, chased her and dragged her into a car and continued the attack. The knife, attack to the head and serious injury are aggravating factors. I also consider the family violence nature of the attack was an aggravating factor, as recently emphasised by the Court of Appeal.⁴ But that clearly went both ways in this relationship. It does provide a context to the offending. On this occasion you continued to attack the victim after she had suffered a serious wound to her head and, when you were on top of her on the ground and in the car, with the knife. I consider the cases relied upon by Ms Pecotic, including Grimshaw-Jones, also referred to by Mr Williams, involves offending less serious than that here. Having regard to comparable cases for this offence, I consider a starting point of two years and ten months’ imprisonment is warranted.⁵

Adjustments

[9] Now I consider what adjustments to make to that starting point, if any. The Department of Corrections reports you were born and raised by your step-mother because your dad has always been in jail, though you now have a relationship with your biological mother. You suffered physical abuse. You started consuming alcohol every week at the age of 14. You left home and school at 15, lived on the streets and fell in with the wrong company. You say you use methamphetamine twice a week. You have three children to a previous relationship, aged 22, 18 and 11. You told

3. MacDonald v R [2011] NZCA 446; R v Wereta [2017] NZHC 1762; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; Grimshaw-Jones v R, above n 2.

⁴ Solicitor-General v Hutchison [2018] NZCA 162 at [27].

5. Hepi v Police [2013] NZHC 2690; Middlemiss v Police, above n 2; R v Tuwairua [2009] NZCA 495.

Corrections their mother ended her relationship with you because of your drug use and abuse of her.

[10] You explained the offending by saying you had done a whole lot of drinking and partying in the days leading up to the offending, including using methamphetamine and cannabis. You also made some suggestion of self-defence. Corrections assesses you as being at high risk of reoffending. I agree with Corrections’ recommendation you should complete appropriate substance misuse and family violence programmes. You have completed a Salvation Army alcohol and drug programme, from which I have seen a positive report of your attendance and motivation. I am told you have been attending bible studies courses, and I have seen a letter from your ACC counsellor who attests to your significant progress with counselling to come to terms with your childhood trauma and your intention to return to your tribal area to be a mentor for youth tempted to follow a destructive path. I encourage you in this. You have some insight into your offending, in acknowledging you could have avoided it by walking away. Next time, do that; for the sake of your children if not yourself.

Submissions

[11] Mr Williams responsibly submits your relevant conviction history is too historic to justify an uplift. He submits you are entitled to a 20 per cent discount for pleading guilty the Friday before your trial was due to commence, to a new charge foreshadowed by the Crown only ten days earlier. He says that was the first opportunity you had to plead guilty and there would have been difficulties for the complainant giving evidence.

[12] Ms Pecotic disputes the pre-sentence report and says it is overly cynical and I should not take it into account. She also emphasises an allegation that the victim attacked you with a knife on a previous occasion, stabbing you in the left armpit and the face and throat. The incident was reported to the Police but you refused to give evidence against her. Ms Pecotic submits you have always been prepared to accept you were wrong here and you pleaded guilty as soon as the charge was reduced. She
submits a discount for remorse and a discount of 25 per cent for pleading guilty is appropriate

Decision on adjustments

[13] Ms Pecotic may be correct that your partner previously attacked you in an earlier incident, but that matter is not before me and there is not sufficient evidence of a sustained pattern of you being battered by your partner to sustain that as a mitigating factor.

[14] I do not make any discount for remorse as there is little expression of that. But I do make a discount of two months, or about five per cent, to recognise the effect your incarceration will have on your children with whom you have ongoing contact and who need your support. And I make a discount of two months for the positive rehabilitative efforts you have made, given your personal history of substance abuse which seems likely to have contributed directly to this offending. I also discount your starting point by six months, or 20 per cent, for your early guilty plea to this offence.

[15] Mr Job, I remind you this is a strike offence, for which you have already been given a first-strike warning. As you heard then, and as Ms Pecotic said just now, the consequences for you will be more serious if you are convicted of another serious violent offence. If there is another such offence, you will have to serve your next sentence without parole.

Sentence

[16] Mr Neville Job, please stand. I sentence you to imprisonment for two years for the offence of wounding with reckless disregard for the safety of another. You may sit down.


Palmer J