R v A
| Jurisdiction | New Zealand |
| Judgment Date | 03 February 2010 |
| Neutral Citation | [2010] NZHC 168 |
| Date | 03 February 2010 |
| Docket Number | CRI-2008-092-016723 |
| Court | High Court |
[2010] NZHC 168
CRI-2008-092-016723
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application to amend summary judgment for specific performance of a sale agreement — plaintiff sought to amend application to damages for wrongful repudiation — property sold to an adjoining owner at significantly lower price after judgment was signed but before it was released — plaintiff sought to amend application for damages — whether application could be amended once judgment on liability given — whether plaintiff had mitigated damages — whether plaintiff obligated to offer land to defendant at resale price.
A R Burns And S C M Waalkens For The Crown
L Hughes for the Prisoner
L B Cordwell (Amicus Curiae) for the Prisoner's Wife
L B Cordwell (Amicus Curiae) P O Box 210 Shortland Street Auckland 1140 for the Prisoner's Wife
I am going to reserve my decision on the application for permanent name suppression. Until my decision is delivered, the temporary suppression orders that I have already made will remain in place.
Mr C, you are here for sentence today for the offence of infecting someone with a disease. This is an offence under s 201 of the Crimes Act 1961. It is a serious offence, which carries a maximum sentence of 14 years' imprisonment.
You have the human immunodeficiency virus, otherwise known as HIV. The Police summary of facts discloses that you infected your wife, who is the mother of your child, with the HIV virus. You did so in a premeditated and calculated way.
HIV is transmitted through bodily fluids, such as blood and semen, and requires the infected fluid of one person to enter the bloodstream of another. Between 2004 and 2008, you and your wife maintained a sexual relationship. However, eventually your wife became too afraid to continue having sexual relations with someone who was HIV positive. In approximately April 2007, she ended sexual relations with you. Your wife has from time to time undergone HIV tests. After she stopped having a sexual relationship with you, she was tested and showed negative for HIV.
Between 1 and 31 May 2008, she was sleeping in a bed with you at your home address. While she was sleeping, you took a needle, which you had infected with your own blood. You pricked your wife's leg on two separate occasions. Your wife had a further HIV test and found she tested positive. She realised what you had done and complained to the Police. When spoken to by the Police, you admitted scratching her with a needle, and you admitted that you knew this would be likely to infect your wife with HIV.
Your counsel has said in her sentencing submissions that you accept the Police summary of facts. This is contrary to the impression you gave the writer of the pre-sentence report. Had you maintained that stance, I would have required a disputed facts hearing. However, your acceptance of the Police summary of facts avoids that occurrence. The result is that you will be sentenced as someone who has knowingly and intentionally infected another person with a serious and incurable disease which you knew would, in terms of present medical knowledge and treatment, remain with your wife for the rest of her life.
In terms of your personal circumstances, you are a 35 year old male. You are originally from Zimbabwe. You arrived in New Zealand, with the support of your wife. You have been granted refugee status. Your counsel and the pre-sentence report writer have referred to the psychological stress you have suffered due to social unrest and violence you witnessed while living in Zimbabwe. The granting of refugee status confirms that your life in Zimbabwe would not have been an easy one. You have reported hearing voices and seeing images. You have not while in New Zealand received treatment for mental health difficulties. However, for the purpose of your sentencing, a report has been obtained from the Regional Forensic Psychiatry Services. The psychiatrist who assessed you has reported that you do not suffer from any major mental health disorder. Nor do you fit the criteria for having a mental disorder which could result in your committal under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The pre-sentence report writer assesses you as a low to moderate risk of re-offending.
In her victim impact report, your wife has written in great detail about the catastrophic effect that your offending has had on her life, including her family life, that is, with regards to her two young daughters and her family in Zimbabwe, her work life, her studies, and her self-esteem and confidence. Put simply, her life as she once knew it has been destroyed forever. The effect of your offending has not only harmed her but also her children, which includes your daughter.
Independent evidence from an infectious disease physician at Auckland City Hospital confirms that although HIV can now be treated to the point where it may no longer be life threatening, it has permanently destroyed your wife's previous good health. It may lead to her death.
You have no prior convictions.
In accordance with the Sentencing Act 2002, I now turn to consider whether there are any aggravating features relating to the offence. I consider the following factors in the Sentencing Act are relevant:
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i) The extent of damage, or harm resulting from the offence (s 9(1)(d)):
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Here the damage and harm resulting from the offence to the victim is enormous. She will have to live with this disease for the rest of her life. She will have to suffer the stigma that comes with the disease; she will have to undertake regular medical check-ups, and to take medication for the rest of her life. The medical expenses that eventually will have to be spent to maintain the victim's health are approximately $15,000 to $20,000 a year.
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ii) The next factor is the particular cruelty in the commission of the offence (s 9(1)(e)):
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It is particularly cruel to scratch or prick someone with a needle while she is sleeping simply and only for the purpose of trying to infect her with HIV.
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iii) The next factor is the abuse of trust in relation to the victim (s9(1)(f)):
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You did this offence to your wife. She is someone with whom you have had a close and personal relationship over the last eight years. She helped you to come to New Zealand and to make a new life for yourself. In such circumstances, she could justifiably have an expectation and trust that you would not seek to harm her by purposely attempting to infect her with HIV while she was sleeping.
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iv) The next factor is the premeditation, and the level of premeditation involved (s 9(1)(i)):
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You set about committing the offence with a considerable amount of premeditation: you kept a box of sewing needles close to your bed; you purposely infected the needle with your own blood, and purposely scratched or pricked your wife with that same needle to ensure that your infected blood would come into contact with her bloodstream. There is nothing accidental about this offending.
As regards aggravating factors relating to the offender, there are none.
I now turn to consider mitigating factors.
There are no mitigating factors relating to the offence. However, there are personal mitigating factors relating to you:
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i) There is your guilty plea (s 9(2)(b)):
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By entering a guilty plea at an early stage of the proceedings, you saved your wife from the trauma of having to participate in the trial as a witness against you.
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ii) There is the fact you have no previous convictions, for which you should be given credit. Though you have not been in this country long and nothing is known of your history in Zimbabwe, I propose to treat you as a first offender (s 9(2)(g)).
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iii) There are also the matters referred to in the Regional Forensic Psychiatry Services report, which records you hearing voices, and is of the view that you suffer from possible narcolepsy and an intermittent psychotic disorder.
I now turn to the purposes and principles set out in the Sentencing Act.
Section 7 sets out the general purposes of sentencing. This list is exhaustive and all the purposes set out must be considered.
I consider that out of the list of general purposes of sentencing in s 7, the purposes that are potentially applicable are:
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i) to hold you accountable for the harm done to the community by the offending (s 7(1)(a));
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ii) to promote in you a sense of responsibility for, and an acknowledgement of, the harm done (s 7(1)(b));
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iii) to provide for the interests of the victim of the offence (s 7(1)(c));
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iv) to denounce the conduct in which you were involved (s 7(1)(e));
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v) to deter you or other persons from committing the same or a similar offence (s 7(1)(f));
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vi) to protect the community from you (s 7(1)(g)); and
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vii) to assist in your rehabilitation and reintegration into the community (s 7(1)(h)).
Section 8 sets out the general principles of sentencing that must be considered.
I consider that the following principles are potentially applicable:
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i) The gravity of the offending in the particular case, including the degree of your culpability (s 8(a));
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ii) The type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences (s 8(b));
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iii) I must impose a penalty near to the maximum penalty prescribed for the offence, if the offending is near to the most serious cases for which that penalty is prescribed, unless circumstances relating to you make that inappropriate (s 8(d));
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iv) I must take into account the general...
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