Brown v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeMallon J
Judgment Date26 Mar 2014
Neutral Citation[2014] NZCA 93
Docket NumberCA686/2013

[2014] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, MacKenzie and Mallon JJ

CA686/2013

Between
Karl Murray Brown
Appellant
and
The Queen
Respondent
Counsel:

A J Holland for Appellant

J M O'Sullivan for Respondent

Appeal against sentence of two years and eight months' imprisonment for conviction on a charge of injuring with intent to injure — appellant subjected his former partner to a sustained assault in a moving bar with punching around the head and face — complainant said she had provoked him — trial judge identified three aggravating features and applied Band 2 of R v Nuku — applied an uplift of 8 months to a starting point of two years and eight months' imprisonment and allowed a 20 per cent discount for guilty plea — whether the starting point was too high when compared with other cases — whether the judge should have allowed a discount for provocation — whether the uplift of eight months was disproportionate to the sentences imposed for the previous offending — whether a discount should have been given for remorse and rehabilitation.

Held: The Judge had correctly identified the three aggravating factors for band 2. The guideline for band two offending was a starting point of up to three years’ imprisonment. The Judge's starting point of two years and eight months was squarely within that guideline.

Guideline judgments were intended to minimise the need to trawl through other cases to obtain guidance as to an appropriate starting point. The Judge was correct to view the aggravating factors that were present as putting this offending towards the higher end of band two and to not embark on a comparison with the case relied on by counsel. Moreover, the other cases relied on by counsel on this appeal did not involve a sustained attack as was the case here. The starting point adopted was stern but not inappropriately so.

Provocation would only reduce the culpability of the offending where there was “serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence”. This was not that kind of situation. It was not a temporary loss of control explained by the complainant's conduct. It was a sustained and serious assault on the complainant, disproportionate to the event said to have provoked it, such that it could not be said to be, or to have remained, an operative cause of the assault.

The uplift was excessive. An additional eight months’ imprisonment was disproportionate to a starting point of two years and eight months. Effectively it put the sentence for this offending outside band two. B had served his sentences for his past offending. That Mr Brown was continuing to offend despite those previous sentences indicated that individual deterrence was an important sentencing purpose. Protection of the public (particularly the complainant) was also an important consideration. A stern sentence, that is a sentence higher than that which might otherwise have been imposed, was warranted. But to add eight months’ imprisonment because of past offending which was not of that level of seriousness was too stern.

The allowance of 20 per cent for the guilty plea was not especially generous. B had offered at the outset to plead guilty if a charge of kidnapping was withdrawn. It was rejected by the police. The offer was made again after committal. This time it was accepted and the guilty plea on the charge of injuring with intent to injure was then entered. The kidnapping charge had difficulties because there was evidence that B wanted the complainant to get out of the vehicle when they were at the service station but she would not. Although B could have entered a guilty plea on the injuring with intent to injure charge immediately he had indicated from the outset that he would do so.

While the Judge was not wrong to make no allowance for remorse and rehabilitation, it was open to the Judge to have made a small allowance for these matters. Even if the Judge was rightly cynical about these matters, they did at least show some efforts by B to accept responsibility.

The end sentence was manifestly excessive. Taking the Judge's starting point of two years and eight months, adding two months because of B's recent relevant convictions and that the offending occurred when he was subject to a sentence of supervision, and then allowing a discount of 25 per cent for the guilty plea, remorse and rehabilitation efforts would mean an end sentence (rounded up) of 26 months’ imprisonment.

Appeal allowed. Sentence quashed. Sentence of two years and two months’ imprisonment imposed.

JUDGMENT OF THE COURT

The appeal against sentence is allowed. The sentence of two years and eight months' imprisonment is quashed and a sentence of two years and two months' imprisonment is substituted.

REASONS OF THE COURT

(Given by Mallon J)

Introduction
1

Mr Brown pleaded guilty to a charge of injuring with intent to injure. 1 He was sentenced to two years and eight months' imprisonment. 2 He appeals against that sentence. Four errors are said to have been made in arriving at that sentence, leading to an end sentence which is said to be manifestly excessive.

Background
2

The charges arose in respect of an incident involving Mr Brown's former partner (the complainant), who is also the mother of his children. On the evening of 1 March 2013 Mr Brown was drinking alcohol with an associate at an address in Wellsford. The complainant later joined them. Shortly before midnight all three went on a drive to visit associates in Whangaparaoa. On the way Mr Brown subjected the complainant to a sustained assault. He first punched the complainant in the face. He continued the assault, punching the complainant around the head and face several times, placing his knee on her chest which caused her to have difficulty breathing, and pulling clumps of hair from her head which caused injuries to her scalp. Mr Brown and his associate made comments which caused the complainant concern about what might happen to her. She sent a series of text messages to a friend. The police were contacted and they responded. They located the car and stopped it. They found the complainant bleeding, bruised and in a distressed state. Mr Brown and the associate were arrested. The complainant was taken by ambulance to the hospital where she received treatment and was discharged some hours later.

3

Mr Brown was sentenced in the District Court by Judge Collins. 3 The Judge adopted a starting point of two years and eight months' imprisonment. He applied an uplift of eight months for previous offending and because this offending occurred while Mr Brown was subject to a sentence of supervision. He applied a discount of eight months for Mr Brown's guilty plea. This left an end sentence of two years and eight months' imprisonment.

Starting point
4

The first alleged error is that the Judge's starting point was too high. The guideline judgment is Nuku v R. 4 It is accepted that the offending fell within band two of that guideline judgment. That band applies where three or fewer aggravating factors are present. 5 The District Court Judge correctly identified three aggravating

factors: the complainant's confinement in a moving vehicle, 6 the sustained nature of the violence, and attacks to the head. The Judge considered that the offending was “squarely within band 2”. 7 The guideline for band two offending is a starting point of up to three years' imprisonment. 8 The Judge's starting point of two years and eight months was squarely within that guideline.
5

Counsel for Mr Brown submits that the starting point was too high when compared with three cases. 9 Of those three cases, only one of them ( Cavanagh v Police) was referred to the Judge at the time of sentencing. 10 That case was released close in time to Nuku v R and did not refer to it. 11 The Judge referred to counsel's submission that Cavanagh v Police was more serious than the facts of the present case but noted that this kind of offending was now governed by Nuku v R.

6

Guideline judgments are intended to minimise the need to trawl through other cases to obtain guidance as to an appropriate starting point. The Judge was correct to view the aggravating factors that were present as putting this offending towards the higher end of band two and to not embark on a comparison with the case relied on by counsel. Moreover, the other two cases relied on by counsel on this appeal did not involve a sustained attack as was the case here. Our assessment is that the starting point adopted was stern but not inappropriately so.

Provocation
7

The second alleged error concerned the absence of a discount for provocation. The basis for the provocation was comments made by the complainant at a restorative justice meeting and a letter from the complainant to the Court.

8

The restorative justice report records the complainant as saying that she was angry and had been drinking for eight hours. It records that when she saw that the appellant had “hickies” on his neck, she was “even...

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