Appellant. JOHN DAVID WRIGHT Respondent JUDGMENT OF THE COURT

Transcription

1 IN THE COURT OF APPEAL OF NEW ZEALAND CA831/2013 [2014] NZCA 119 BETWEEN AND THE QUEEN Appellant JOHN DAVID WRIGHT Respondent Hearing: 12 March 2014 Court: Counsel: Judgment: Wild, Goddard and Clifford JJ S B Edwards for Appellant R A Harrison for Respondent 3 April 2014 at am JUDGMENT OF THE COURT A B C The application for leave to appeal is granted. The appeal against sentence is allowed. The sentence of six months home detention, with a further six months post-detention conditions is quashed and a sentence of one year and two months imprisonment substituted in its place. D Mr Wright is ordered to surrender himself to the Picton Police Station, 36 Broadway, Picton at 10 am on Monday 7 April REASONS OF THE COURT (Given by Clifford J) R V WRIGHT CA831/2013 [2014] NZCA 119 [3 April 2014]

2 Introduction [1] The respondent, John Wright, pleaded guilty to one count of injuring a police officer, Senior Constable Woolf, with intent to injure in February On 13 November 2013 Judge Mill sentenced Mr Wright in the Blenheim District Court to six months home detention, with a further six months post-detention conditions. 1 [2] The Solicitor-General seeks leave to appeal against Mr Wright s sentence on the ground that it is manifestly inadequate. Facts [3] At about 9.20 am on 21 February 2013, Mr Wright was standing outside the public library in Picton when Senior Constable Woolf drove past in his patrol car. Mr Wright began yelling abuse and obscenities at Senior Constable Woolf. The Senior Constable stopped the car and approached Mr Wright, who had by then entered the library. In the library, and in the presence of other library patrons, Mr Wright continued to yell abuse at the Senior Constable. Mr Wright was arrested for disorderly behaviour. [4] Senior Constable Woolf took Mr Wright to the Picton police station. On arrival Mr Wright was co-operative and removed his shoes on request. Senior Constable Woolf began to remove Mr Wright s handcuffs. When one handcuff was removed Mr Wright, without warning, punched Senior Constable Woolf in the mouth, causing him to fall backwards onto the concrete floor and stunning him. Mr Wright continued to punch the officer in the head and face, throwing over 30 punches still with handcuffs attached to one wrist, while the officer tried to cover his head with his hands. [5] A female (non-sworn) watch house officer tried to stop the assault, but was unable to do so. With the help of an off-duty officer who happened to be at the police station, and the use of a yard broom and pepper spray, Mr Wright s attack on the Senior Constable was stopped and he was removed to a cell. 1 R v Wright CRI , 13 November 2013 [Sentencing notes].

3 [6] Mr Wright s attack on the Senior Constable was captured on CCTV. Mr Wright s attack involved a high level of violence over some several minutes. [7] Senior Constable Woolf was initially treated in hospital for minor concussion and extensive cuts and bruises over all his face, head and forearms. Two lacerations around his left eye required stitching. The Senior Constable has suffered considerably from delayed concussion. After Mr Wright s assault, he continued to suffer frequent dizzy spells, severe headaches, lethargy and problems performing basic cognitive tasks and dealing with stress. He was off work completely for two months, during which time he was largely house-bound and living alone, unable to drive or even visit a supermarket. In April he returned to work on a graduated, part-time basis. At the time of sentencing, he was still only working 32 hours a week and had only recently begun to drive a car for more than 30 minutes. He is particularly anxious about the effect another concussion could have on him. [8] Mr Wright, aged 45, has an extensive criminal history, largely for cannabis, driving and anti-social offences, but also including three convictions for assault in the mid 1990s. His more recent offences include: (a) in March 2009, four counts of unlawfully possessing firearms; and (b) in 2012, convictions for male assaults female (x 1), breach of protection order (x 4), possession of an offensive weapon, as well as a continuation of disorderly behaviour offending. [9] Mr Wright was originally charged with wounding with intent to injure under s 188(2) of the Crimes Act 1961, the maximum penalty for which is seven years imprisonment. Following Mr Wright s committal, the Crown Solicitor laid the more serious charge of injuring with intent to cause grievous bodily harm, which attracts a 10 year maximum sentence. Then, after discussions between the Crown and the defence, the Crown offered the lesser charge of injuring with intent to injure, the maximum penalty for which is five years imprisonment.

4 [10] At that point Mr Wright sought a sentence indication, and one was provided by Judge Mill: an end sentence of on or around two years imprisonment based on a starting point of three years, no uplift for previous offending, a guilty plea discount of 25 per cent and the possible impact of remorse and time spent on electronically monitored (EM) bail. 2 The Judge also indicated he would be willing, based on Mr Wright s good record of complying with sentences, to consider home detention as an alternative to imprisonment. [11] Following that sentencing indication an amended indictment was filed. Mr Wright then entered his guilty plea and was sentenced. [12] In line with his sentencing indication, Judge Mill identified a three year starting point sentence, having in terms of Taueki and Nuku 3 assessed the culpability factors of the degree of violence involved in Mr Wright s assault and of the attack to the head, together with the very serious consideration of this being an attack on a police officer carrying out his duties. [13] The Judge then turned to mitigating factors. As it is this part of the Judge s sentencing exercise that the Solicitor-General is particularly critical of, we set it out in full: 4 [21] Well, a three-year starting point is where I start from but there are a number of deductions that I make. There is the deduction for your guilty plea. There is a deduction for remorse, although that is not a great deal. There are your circumstances which I take into account. The seriousness of the offence and offending I have already really addressed with the starting point. [22] Taking all those matters into account I would get down to a sentence of around two years as a final sentence of imprisonment, but I need to also take into account what has happened so far as you being in custody and being on electronic bail. Given the contents of the letter from the social worker while it is not suggested that your son living with you is necessarily in his interests in the longer term he is to live with you in the meantime while care and protection proceedings are considered and a family group conference for that purpose is called for. It was agreed this morning that he would continue to live with you and you might be able to demonstrate, together with your son, that you have a commitment to your son being R v Wright DC Blenheim CRI , 17 September 2013 [Sentencing indication]. R v Taueki [2005] 3 NZLR 372 (CA); Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. Sentencing notes, above n 1.

5 offence free. If that does not happen then essentially the authorities would find somewhere for your son to live. [23] He has been living with you for a number of months, whether that has been entirely successful I cannot be sure but that has been the fact that he has been allowed to remain there and he will continue to remain with you if you are at home. The fact that he would be deprived of that if I send you to prison is another factor that I think favours a sentence of home detention. [24] Given that the home detention sentence that I would normally impose would be one of 12 months, I must reduce that for the following reasons. Firstly, you have been in custody for a month and you have been eight months on bail, which is equivalent to a home detention sentence, or similar to that. I am not going to give you a straight discount for all of that but, weighing everything into the scales, I think in this case imprisonment is not warranted for the reasons that I have said. But, given the seriousness of the charge, home detention is the only other alternative and on the injuring with intent to injure charge you are convicted and sentence to six months home detention. [14] In summary, the Judge would appear to have first concluded that, from the starting point of three years, a deduction of 12 months was appropriate on account of Mr Wright s guilty plea, remorse and other unspecified circumstances. Then, having regard to time spent in custody, time on EM bail and the implication of Mr Wright s son having been living with him, the Judge concluded that home detention was the appropriate sentence, not imprisonment, and that the length of that sentence of home detention should be six months. Case on appeal [15] The Solicitor-General says that: (a) the Judge erred in deciding that an end sentence of two years imprisonment or less was available in the circumstances; or (b) even if the Judge was not wrong in reaching that conclusion, the Judge was wrong to have commuted Mr Wright s sentence to home detention; and (c) Mr Wright s sentence failed to give the necessary primacy to deterrence and denunciation.

6 [16] For Mr Wright, Mr Harrison s argument was, in summary, that neither the starting point sentence nor the guilty plea discount could be challenged. Moreover, the decision to sentence Mr Wright to home detention was a proper one, made taking account of relevant factors. Those factors included the impact that the imposition of a sentence of imprisonment would have on Mr Wright s ability to care for his son, and to retain ownership of his family home. Mr Harrison submitted, in the context of the assessment of Mr Wright s overall culpability, that Mr Wright s medical history in particular the effects of two motor vehicle accidents earlier in life which had caused Mr Wright significant brain and spinal damage were relevant and supported the overall sentencing outcome. Analysis [17] It is convenient to consider this appeal in terms of the Solicitor-General s criticisms first of the Judge s three year starting point sentence, then of the 12 month discount and finally of the decision to commute what would otherwise have been a sentence of imprisonment to a sentence of home detention of six months duration. Starting point [18] The Solicitor-General argues that, applying this Court s guideline decision in Nuku, the Judge should have identified a starting point sentence, before aggravating and mitigating factors, of at least four years imprisonment. In terms of Nuku, that is a starting point towards the upper end of band three. It is suggested that Mr Wright s offending involves four Taueki culpability factors: 5 attacking the head, use of a weapon, serious injury and attacking a police officer in the execution of his duty. In Nuku, band three is said to be the appropriate band where three or more aggravating features are present and the combination of these features is particularly serious. The band spans sentences from two years to the maximum five years imprisonment. 6 In addition, the Solicitor-General argues that an uplift, on account of previous offending, of at least six months was warranted to reflect what the Solicitor-General described as Mr Wright s escalating and recent history of violence and the fact the offending occurred whilst he was subject to an existing sentence. 5 6 R v Taueki, above n 3, at [31]. Nuku v R, above n 3, at [38](c).

7 [19] The very clear and serious culpability factors here are the attack to the head, the degree of violence and the resulting harm caused, and that this was an attack on a police officer. We do not think this can properly be categorised as an attack with a weapon. Whilst the handcuffs remained attached to Mr Wright s wrist, and may have contributed to some of the injuries inflicted on the officer, Mr Wright s actions were not categorised, either in terms of the charge he faced or in terms of the summary of facts, as an attack with a weapon. We think it would be wrong so to categorise them for sentencing purposes. [20] On that basis, there are three culpability factors. We think a starting point sentence of three years is within range. As Ms Edwards acknowledged in arguing this application, that was consistent with the range argued for by the Crown at sentencing. [21] Furthermore, we do not think the Judge s decision not to impose an uplift for previous offending means, given Mr Wright s personal circumstances, that starting point becomes manifestly inadequate. Mr Wright does have a long history of offending. This is, however, the first time he has faced charges for violence of this nature. Some modest uplift would have been available, but not as much as six months. The absence of such an uplift does not, therefore, provide a basis to grant the Solicitor-General s application. The 12 month discount [22] The Judge constructed the 12 month discount on the basis of Mr Wright s guilty plea, his remorse and his circumstances. On the basis of the Judge s sentencing indication, the guilty plea discount would itself have been 25 per cent, with the balance attributable to those other matters. It was the Solicitor-General s argument that the guilty plea discount should have been less than 25 per cent, and that it was hard to see the justification for any additional discount. [23] We think the 25 per cent discount was appropriate. As we have already outlined, Mr Wright entered his guilty plea to the charge of injuring with intent to injure at the earliest possible opportunity. That he previously faced more serious

8 charges, and had not pleaded guilty to those, does not in these circumstances warrant any reduction to the credit for that guilty plea. [24] We agree with the Solicitor-General that it is difficult to see the basis for any further discount. Certainly, the extraordinary remorse which may be recognised in addition to a 25 per cent discount for a guilty plea is not present here. Mr Harrison also pointed to the impact on Mr Wright, and his behaviour, of serious motor vehicle accidents in 1992 and Mr Wright was also, in 2012, undergoing an acrimonious separation from his wife. We do not deny the reality of these issues in Mr Wright s life. However, no material was placed before us which linked, in any particular way, those matters to this current offending. In those circumstances, we do not think a further discount on their account can properly be allowed. [25] The only additional circumstance relevant to the appropriate custodial sentence, before the question of home detention (if otherwise available) might be considered, is therefore the time Mr Wright had spent on EM bail. 7 Mr Wright had been remanded on EM bail for eight months prior to his sentencing. The Solicitor-General submitted that, in that context, a discount of no more than two months was available to Mr Wright. Mr Wright s remand on EM bail was essentially similar to a sentence of home detention. Taking the flexible, evaluative approach called for by this Court in Keown v R and R v Tamou, 8 we think here a credit of four months could have been allowed to Mr Wright on account of that factor. [26] By our assessment, therefore, the sentence of imprisonment which properly provided the context for considering the question of home detention was, at the time Mr Wright was sentenced, one year and eleven months. The home detention decision [27] We think the principal factor, in assessing the appropriateness of a sentence of home detention as opposed to one of imprisonment, is whether any sentence of home detention let alone one of six months duration appropriately denounces 7 8 With effect from 4 September 2013, s 9(2)(h) of the Sentencing Act 2002 requires the Court to take into account time spent on bail with an EM condition as a mitigating factor. Keown v R [2010] NZCA 492; R v Tamou [2008] NZCA 88.

9 and deters this serious, violent, offending against a police officer acting in the course of his duties. The two factors the Judge relied on to decide whether home detention was appropriate were the impact a sentence of imprisonment would have on Mr Wright s ability to care for his son, and whether such a sentence was called for, given the length of time Mr Wright had been on remand on EM bail. [28] There was, as the Judge acknowledged, considerable uncertainty as to whether Mr Wright was the appropriate caregiver for his son. Mr Harrison explained to us that the Child, Youth and Family Service (CYFS) had serious concerns on that score. Mr Wright s pre-sentence report noted that CYFS did not support Mr Wright being sentenced to home detention, because of care and protection issues relating to his son. CYFS in effect saw the imprisonment of Mr Wright as the opportunity to remove his son from an inappropriate caring environment. Our assessment is that, in those circumstances it is difficult to see how this factor supports a conclusion that home detention was the appropriate sentence. [29] In deciding whether or not a sentence of imprisonment is called for, that is, separately from the determination of the length of an appropriate sentence of imprisonment, time spent on particularly restrictive bail conditions may be a relevant consideration. Given the seriousness of Mr Wright s offending, we do not think the fact that Mr Wright had spent time on EM bail weighs in any relevant way against the need for a sentence of imprisonment. [30] Finally we do not consider it relevant here that imprisonment is likely to impact on Mr Wright s ability to meet his financial obligations with respect to the family home. That, and like outcomes, can be an almost inevitable effect of a sentence of imprisonment. Again, given the seriousness of Mr Wright s offending, that possibility does not render a sentence of imprisonment inappropriate. [31] We are therefore of the view that the factors the Judge relied on in deciding to commute the sentence to one of home detention do not outweigh the need for a sentence of imprisonment as the appropriate response to this offending. We agree that the sentence of home detention arrived at by the Judge was manifestly inadequate itself and, very especially, by reason of its length. We do not think

10 extending the term of Mr Wright s period of home detention is an appropriate response to this application. In our view, for this violent attack on a police officer acting in the course of his duties a sentence of imprisonment was called for. The question for us is, in the circumstances as they now prevail, and given the considerations applying to an application by the Solicitor-General for leave to appeal, what should be the term of that sentence of imprisonment? [32] Mr Wright has now been subject to his sentence of home detention for some four and a half months. On the usual equivalency basis applied when considering sentences of home detention in place of sentences of imprisonment, we think it is appropriate to reduce the sentence of imprisonment (one year and 11 months) that we consider would have been appropriate at the time of sentencing by a period of nine months. That is, we think the minimum sentence that can now properly be imposed is imprisonment for a term of one year and two months. [33] We record that Mr Harrison advised us that Mr Wright did not intend to seek leave to withdraw his guilty plea. We also record that, as a matter of law, that indication does not bind Mr Wright now that we have delivered a judgment on his appeal. We also record that Mr Harrison, after the hearing of this appeal, filed further submissions without prior leave. We formally declined to consider those submissions which would, in any event, appear only to repeat matters that had been at least touched on by Mr Harrison before us. Result [34] The Solicitor-General is granted leave to appeal, his appeal is allowed and the sentence of six months home detention, with a further six months post-detention conditions, imposed on Mr Wright is quashed and a sentence of one year and two months imprisonment substituted in its place. Mr Wright is ordered to surrender himself to the Picton Police Station, 36 Broadway, Picton at 10 am on Monday 7 April 2014.

11 Solicitors: Crown Law Office, Wellington for Appellant.