Sweeney v R
| Jurisdiction | New Zealand |
| Judge | Palmer J |
| Judgment Date | 04 September 2023 |
| Neutral Citation | [2023] NZCA 417 |
| Court | Court of Appeal |
| Docket Number | CA243/2023 |
[2023] NZCA 417
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Mallon, Moore, and Palmer JJ
CA243/2023
N P Chisnall KC for Appellant
M R L Davie for Respondent
Criminal Sentence — appeal against a sentence of 2 years and 2 months imprisonment im for assault with intent to injure and assault with a weapon — principles relevant to discounting a sentence to mitigate the effect on a child — Sentencing Act 2002 — United Nations Convention on the Rights of the Child
The appeal was allowed. The sentence imposed in the HC was quashed. A sentence of 1 year and 11 months imprisonment was substituted.
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A Leave is granted to adduce further evidence.
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B The appeal is allowed. The sentence of two years and two months' imprisonment is quashed and substituted with a sentence of one year and 11 months' imprisonment.
(Given by Palmer J)
Mr Benjamin Sweeney, the appellant, was found guilty of assault with intent to injure and assault with a weapon, and acquitted of manslaughter, arising from a brawl at a petrol station in Ōtorohanga in October 2021. He was sentenced by Downs J in the High Court on 9 May 2023 to two years and two months’ imprisonment. 1 Mr Sweeney appeals on three grounds. We consider it was open to the Judge not to provide a discount for Mr Sweeney's expressions of remorse which were focussed on the death of one of Mr Sweeney's opponents in the brawl, as opposed to being focussed on his offending. We consider that the law, applied to Mr Sweeney's circumstances, means that there should have been a discount to his sentence for the interests of his two young children, and their effect on his rehabilitative prospects. However, we are satisfied that the interests of the children in this case do not tip the balance far enough to make home detention the least restrictive sentence that is appropriate in the circumstances of this serious violent offending. We allow the appeal and substitute the sentence with a sentence of one year and 11 months’ imprisonment.
In his sentencing remarks, the Judge outlined the offending of Mr Sweeney and of his cousin, Mr Frank Sweeney:
[3] On 2 October 2021, you, Benjamin Sweeney, you, Frank Sweeney, and a third man, stopped your car on the main road in Ōtorohanga outside the service station. It was about 6.15 in the evening. It was still light.
[4] Almost immediately, Anthony Bell and his two brothers, Ethan Tumai and Victor Tumai, pulled up behind your car. Anthony Bell and Ethan Tumai had been drinking.
[5] Both of you and the third man rushed the victims' car as they were getting out. Benjamin Sweeney, you were initially holding a beer bottle.
[6] Sadly, everyone wanted to fight. I return to why shortly.
[7] Anthony Bell was initially holding a hammer. He dropped it and bent over. As he did so, you, Benjamin Sweeney, punched him to the head twice. Your blows were hard. They knocked Mr Bell to the ground. While he was on the ground, you punched him to the head, kicked him to the head, and as he was getting up, stomped his head. You also punched his body. This violence reflects the first charge of assault with intent to injure, which carries a maximum penalty of three years' imprisonment.
[8] Victor Tumai was fighting the third man from your car. Benjamin Sweeney, you picked up the hammer from the ground, ran to Victor Tumai and struck him, using the hammer, to the back. You then ran back to Mr Bell; then
back again to Mr Tumai. You again hit him in the back with the hammer. This violence is captured by the assault with a weapon charge, which carries a maximum penalty of five years' imprisonment. Victor Tumai sustained swelling, bruises and grazes to various parts of his body.[9] Frank Sweeney, you squared off with Ethan Tumai. He was holding a small screwdriver or small knife. He ran away from you. You chased him across the road. You then ran back to where Mr Bell was standing in the forecourt of the service station. You then delivered a very powerful blow, either to Mr Bell's head or upper body. I cannot stress enough its forcefulness. It knocked Mr Bell backwards onto the ground. He died because of brain injury in consequence of your assault. You and Benjamin Sweeney fled.
[10] You did not know the victims. You had encountered them, by chance, a little earlier on the main road leading into Ōtorohanga.
[11] What happened on the road between the two groups was a matter of contention at trial. The entire sequence cannot be reconstructed. However, I have no doubt that you, the Sweeneys, were the initial aggressors on the road. I am sure you were initially following the victims' car and that you then tailgated it. I am also sure you passed the victims' car at some point. A motorist driving the other way saw someone in your car making a Mongrel Mob gesture out of the window at the victims' car. I do not doubt those in the victims' car returned your aggression in some way or ways. By the time the two cars arrived at the service station, everyone wanted to fight because of what had happened on the road.
[12] The case went to trial. Both of you claimed you were acting in self-defence. Indeed, both said you were terrified of the victims and worried they would cause you serious bodily harm — or worse. Much of your testimony was exaggeration or outright fabrication. I have no doubt that both of you wanted to fight the victims, just as they, initially at least, wanted to fight you. That was apparent from the closed-circuit television footage from the service station. Indeed, almost everything that occurred was captured on closed-circuit television.
[13] The jury found both of you guilty, save you Benjamin Sweeney in relation to Mr Bell's death. The jury were not sure that you helped [or] encouraged Frank Sweeney commit manslaughter.
(Footnotes omitted)
Mr Chisnall KC, for Mr Sweeney, submits that the Judge's finding at paragraph [11] of his sentencing, and another observation that the fight commenced by “tacit agreement”, 2 downplayed the undisputed evidence that the deceased and his brothers doggedly pursued Mr Sweeney and his companions. The Judge's remarks were focussed on what had precipitated the assault, namely that the Sweeneys were the initial aggressors on the road and that everyone wanted to fight when the two cars
arrived at the service station. Those remarks were not inconsistent with evidence that the victim and his brothers doggedly pursued the Sweeneys. It was open to the Judge, as trial judge, to form the views he expressed in this part of his sentencing remarks. There is no error in this respectThe Judge identified three aggravating factors of Mr Sweeney's offending: attacking Mr Bell to the head with significant force; administering blows while he was defenceless on the ground; and using a weapon against Victor Tumai. 3 He considered the offending was plainly serious, though it fell just short of extreme violence. 4 He adopted a global starting point of two years and nine months' imprisonment, saying: 5
I also record the obvious: this violence occurred in daylight, in a main street, under the gaze of closed-circuit television and people at the service station. Violence in a public place has a ripple effect. It makes those in the community feel unsafe, it compromises trust, and it contributes to a sense of lawlessness in a post-pandemic world.
The Judge uplifted Mr Sweeney's sentence by three months' imprisonment for his history of recent violence — a conviction for injuring with intent or reckless disregard in August 2017 and for assault in a family violence context in January 2018. 6 The Judge considered discounts to the adjusted starting point of three years' imprisonment. As explained further below, he:
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(a) made no deduction for remorse; 7
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(b) allowed a five-month (approximately 14 per cent) discount for Mr Sweeney's personal circumstances set out in a pre-sentence report and cultural report; 8
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(c) deducted five months for Mr Sweeney's 14 months on electronically-monitored (EM) bail before the trial; 9
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(d) did not make a deduction for Mr Sweeney's role as caregiver to his children; 10 and
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(e) stated that, even if home detention were available, he would not have imposed it. 11
Mr Sweeney's end sentence was two years and two months' imprisonment. Mr Frank Sweeney was sentenced to four years' imprisonment for the manslaughter of Mr Bell.
Mr Sweeney appeals his sentence on the grounds that he should have discounts for remorse and for being a solo parent to his young children and, accordingly, should have been sentenced to home detention instead of imprisonment.
Under s 250 of the Criminal Procedure Act 2011, we must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed instead. 12 Otherwise, we must dismiss the appeal. The Court will only intervene, and substitute its own view on appeal, if the sentence is manifestly excessive. 13 The focus is on whether the end sentence is within the available range. 14
Mr Sweeney seeks leave to adduce an affirmation about adverse aspects of the Department of Corrections' pre-sentence report, as well as evidence of completing an anger management course. Mr Chisnall, for Mr Sweeney, submits there was no meaningful opportunity for Mr Sweeney to respond to the inaccuracies in the report because it was only made available to Mr Sweeney's counsel two working days before sentencing. Mr Davie, for the Crown, observes that Mr Sweeney had an opportunity to discuss the pre-sentence report with his lawyer prior to sentencing and his lawyer expressed Mr Sweeney's views to the Judge. But the Crown abides the Court's decision on admissibility.
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