Brown v R

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 26 March 2014
• Neutral Citation: [2014] NZCA 93
• Docket Number: CA686/2013
• Court: Court of Appeal
• Date: 26 March 2014

Between

Karl Murray Brown

Appellant

and

The Queen

Respondent

[2014] NZCA 93

Court:

Ellen France, MacKenzie and Mallon JJ

CA686/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

A J Holland for Appellant

J M O'Sullivan for Respondent

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 angrier and slapped him” and “told him that he would never see his children again”. The letter from the complainant to the Court was to similar effect. In that letter she said she was as much to blame for the events that led up to the assault, that she was extremely angry and hurt when she saw the appellant had hickies and “I knew what buttons to push to make him feel the pain I was feeling”.

9 The Judge considered that this was not “anywhere near reaching a threshold of provocation which could in any way mitigate” an adult male punching the complainant in the face and continuing the assault. 12 We agree. Provocation in some circumstances may reduce the culpability of the offending. It will do so 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”. 13 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 cannot be said to be, or to have remained, an operative cause of the assault.

Uplift

10 The third alleged error concerned the eight month uplift. The Judge considered that this was appropriate because the appellant had two convictions for violence against the complainant and the present offending occurred when the appellant was subject to supervision for the most recent of those offences. The Judge considered that the close connection of those matters with the present offending warranted an uplift of 25 per cent on the starting point. He described this uplift as being generous to the appellant.

11 Counsel for Mr Brown submits that this uplift was disproportionate to the sentences imposed for the previous offending. 14 The two offences the Judge relied on as justifying the uplift were a common assault on 19 February 2012 for which, together with an assault on a police officer, one year's supervision was imposed; and male assaults female on 26 July 2010 for which community work and supervision were imposed. Counsel says that it was wrong for the Judge to impose an uplift of eight months'...