IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/04
CA249/04
THE QUEEN
v
ZHARN CRAIG BURNS
CRAIG PHILLIP BURNS
Hearing:
14 October 2004
Court:
Hammond, Goddard and Randerson JJ
Counsel:
V C Nisbet for Appellant
G C de Graaff for the Crown
Judgment:
26 November 2004
JUDGMENT OF THE COURT
Both appeals against sentence are dismissed.
REASONS
(Given by Randerson J)
Introduction
[1]
The appellants, Craig and Zharn Burns, are father and son respectively. As a
result of an incident on 9 November 2002, they were each convicted in the
R V BURNS AND And Anor CA CA247/04 [26 November 2004]
District Court on one count of causing grievous bodily harm to the victim J, contrary
to s 188(1) of the Crimes Act 1961.
[2]
Zharn had eventually accepted responsibility for the offending and pleaded
guilty. Craig pleaded not guilty but was convicted after trial before Judge Atkins QC.
He later sentenced each of them to four years imprisonment.
[3]
A cumulative term of nine months imprisonment was imposed on Zharn for
unrelated offending which occurred while he was on bail for the s 188(1) offence.
This additional sentence is not challenged on appeal but both appellants challenge
their sentences on the s 188(1) convictions.
Background facts
[4]
The appellants knew the victim and went to his home late on the evening of
9 November 2002. When they arrived, the victim came out of the house and was
attacked by both the appellants. According to the summary of facts, they repeatedly
punched him about the face and body until he lost consciousness. After the victim
fell to the ground, he was again kicked about the head and face by both appellants
several times.
[5]
After the attack, Craig Burns took the victim inside the dwelling house and
lifted him onto a couch, leaving him in the care of the victim’s 13 year old daughter.
[6]
The attack resulted in very serious injuries to the victim. He was admitted to
hospital where he was maintained in a drug-induced coma for three days. A scan
showed he had bleeding in several areas of the brain and he was unable at that time
to recall the events surrounding the offending. He had a laceration to the right eyelid
as well as bruising and abrasions to the face, chest, and upper back.
[7]
The victim has continued to experience consequences from the head injuries.
He has significant impairment to his memory and a reduced attention span. An
emotional harm report in April 2004 showed that the victim had not been able to
return to work since the incident and, due to fears for the safety of himself and his
family, had moved to another town. As at that date, the victim continued to suffer
from memory loss, disturbance to sleeping patterns, stress, and irritability. The
victim’s daughter, who witnessed the assault, was severely traumatised and was still
experiencing difficulties at the time of the emotional harm report.
The Judge’s approach to sentencing
Zharn Burns
[8]
The Judge noted that Zharn Burns was 18 at the time of the offending but,
despite his relative youth, had already accumulated a number of convictions. The
Judge considered that the most serious matters relevant to the appellant’s sentencing
were convictions on charges of male assaults female in July 2002 for which a
sentence of community work was imposed. The Judge also noted Zharn’s previous
convictions for contravening a protection order and convictions in 2003 on charges
of possession of a knife in a public place, escaping from police custody, possession
of cannabis, shoplifting and theft. He had not previously been sentenced to a term of
imprisonment.
[9]
The Judge recorded that Zharn accepted responsibility for the offending and
had told the probation officer that his father’s only role was slapping the victim twice
to bring him back to consciousness. That was consistent with Craig Burns’ defence
at trial which was that he arrived at the scene to find Zharn assaulting the victim and
that his only role was to attempt to stop the fight. The Judge rejected this version of
events, observing that it was entirely contrary to the jury’s verdict. It was accepted,
however, that Craig had taken the victim inside afterwards.
[10]
The Judge also noted comments made by Zharn Burns to the probation
officer to the effect that he had felt angry with the victim because he believed him to
be a paedophile who had abused the victim’s foster daughter (a former girlfriend of
Zharn’s). The Judge firmly rejected any suggestion that this supposed excuse could
be relied upon in any way in mitigation. The Judge stated:
I also say and I say it as emphatically as it is possible to say, that it is not the
function of members of the community to be imposing penalties on persons
who they believe have offended in some way. Such an approach is utterly
unacceptable and does not amount in any way at all to a mitigating factor. I
have been informed by Mr Nisbet that you now take a more sensible view of
that issue and I am pleased to hear that that is so.
[11]
The Judge went on to record several other factors arising from Zharn’s pre-
sentence report. He recorded that he suffered from attention deficit hyperactivity
disorder, had a problem with alcohol, smoked cannabis, and did not seem too
concerned about the victim. The Judge added that the pre-sentence report had
assessed Zharn as being a high-risk offender whose motivation to change was
considered to be low. We note that Zharn admitted consuming alcohol and drugs
before the attack.
[12]
In dealing with counsel’s submissions, the Judge noted that the Crown’s view
was that the offending fell towards the lower end of category 2 in R v Hereora
[1986] 2 NZLR 164, while the appellants’ counsel had submitted that the offending
properly fell within the first category in Hereora.
[13]
The Judge said he found it difficult to assess how planned or impulsive the
actions of the appellants were. In relation to Zharn, the Judge concluded that the
extent of the violence was not planned. He considered that Zharn observed the
premises and the victim and then reacted. The Judge did not consider that Zharn
intended to attack the victim until that point. The Judge went on to accept the
Crown’s submission that the violence consisted of repeated blows when the victim
was lying defenceless on the ground. He also accepted a submission that the fact
that there were two assailants on a lone victim was an aggravating factor, that the
attack was prolonged, and that it happened in front of one of the victim’s children.
He noted, however, that the attack had occurred outside the dwelling house, rather
than inside it.
[14]
The Judge considered that a further aggravating feature was the degree of
harm to the victim which he considered would, in all probability, have consequences
for the rest of the victim’s life.
[15]
The Judge noted that the mitigating features in Zharn’s case were his youth
combined with the difficulty arising from his attention deficit disorder. He adopted a
starting point of five years, which he described as being “right between the two
categories” in Hereora. After taking into account the identified mitigating features
and Zharn’s guilty plea (for which the Crown accepted a small discount should be
made), the Judge arrived at the sentence of four years.
Craig Burns
[16]
Craig was 46 years of age at the time of sentencing. He was a self-employed
contractor, married with three sons. He had been a volunteer fireman for some
13 years and the Judge noted that the probation officer’s view was that the offending
was out of character. The Judge recorded that Craig had a number of previous
convictions of a minor nature. The only prior conviction for violent offending was a
conviction for assault in 1978, for which he was fined. Further relevant factors from
the pre-sentence report noted by the Judge were the fact that the appellant continued
to maintain his innocence while expressing regret for the injuries caused to the
victim, the assessment of Craig’s risk of re-offending as low, and an offer by him to
pay reparation of $10,000 to the victim. We refer later to this last factor in more
detail.
[17]
The Judge concluded in relation to Craig Burns:
… I have come to the view that the lesser role that you played should be
taken into account, even though that is offset to some extent by the greater
responsibility you bear because of your age and level of maturity. I also take
into account the offer of reparation of $10,000.00 and that will be made to
the victim. I take the view that in those circumstances, although you don’t
receive the benefit of a guilty plea, the sentence you receive will be the same
sentence of 4 years imprisonment.
[18]
The Judge did not explain why he determined that Craig played a lesser role.
This has caused us some difficulty on appeal and we reiterate the importance of
judges making clear findings on relevant factual issues where sentencing takes place
after a trial. Our own review of the evidence suggests that both appellants were
equally involved in the assault on the victim. If, as the Judge found, there were some
difference in their involvement, we do not regard it as carrying great weight in our
consideration of relative culpability.
Submissions on appeal
[19]
Mr Nisbet submitted for the appellants that the sentences were each
manifestly excessive. He accepted that the starting point of five years imprisonment
in each case was appropriate and focussed his submissions on the extent of the
discount for mitigating factors.
[20]
In relation to Zharn Burns, he submitted that no proper discount was given
for the guilty plea, his acknowledgement of his part in the offending, and his youth.
He submitted further that consideration should have been given to Zharn’s medical
difficulties and “his wrong but misguided belief in the abominable behaviour of the
complainant”. This last submission was not pursued in oral submissions, rightly in
our view. And, as we later detail, Mr Nisbet suggested that credit should have been
given to Zharn as well as Craig for the offer of reparation. He submitted that the
proper sentence for Zharn would have been one of three years imprisonment.
[21]
In relation to Craig Burns, Mr Nisbet submitted that insufficient credit was
given by the Judge to Craig’s real concern for the victim, the lack of any relevant
prior convictions, his lesser role in the offending, and the offer of reparation which
he submitted was a matter of real significance. He submitted that raising the money
(which involved extending the mortgage on the family home) placed considerable
hardship on the appellant and his family. He submitted finally that the sentence in
Craig’s case should also have been three years imprisonment.
[22]
For the Crown, Ms de Graaff submitted that, while the sentences were stern,
they were within the available range, given the circumstances of the offending and
the offenders.
She drew attention to the seriousness of the assault (a factor
acknowledged by Mr Nisbet), the serious consequences to the victim, and,
particularly in the case of Zharn Burns, his prior record of violent offending.
Ms de Graaff submitted that the Judge had taken into account all of the factors
identified by Mr Nisbet in support of the appeals and had made appropriate
allowance for those factors.
[23]
She submitted in Zharn’s case, that relatively little weight could be given to
his youth given his past record and the high risk of re-offending. As well, while
accepting that Zharn was entitled to some credit for his guilty plea, it was not
indicated until approximately one month before trial. That was over twelve months
after Zharn’s arrest. Ms de Graaff also submitted that the Judge had taken into
account Zharn’s attention deficit disorder and that the probation officer’s view
should also be considered namely, that the offending resulted from Zharn’s
propensity for violence and his alcohol and drug use.
[24]
Ms de Graaff submitted there was no reason to differentiate between the
appellants in terms of the end result and that the sentences were neither excessive nor
inappropriate.
Reparation issues
[25]
In the hearing, we indicated that we wished to have a further report on the
payment of reparation to the victim and whether the payment had been accepted by
him as expiating or mitigating the wrong in terms of s 10(2)(b) of the
Sentencing Act. A report dated 8 November 2004 has since been received from a
probation officer who has been in contact with the victim. It has been confirmed that
the victim has received the sum of $10,000 paid by way of reparation. The victim
has advised that the reparation has given him the ability to help his family move
forward and that the money has gone some way to making amends. However, he
reports that he is still suffering side-effects from the assault and continues to have
concerns about his safety.
[26]
Material was placed before us on behalf of Craig Burns which indicates that
the payment of reparation and Craig’s imprisonment have placed the family in
serious financial difficulty, to the point where it may be necessary to sell the family
home.
[27]
It was accepted on behalf of the Crown that the reparation payment was
effectively made on behalf of both appellants.
Conclusion
[28]
We are not unsympathetic to the plight of the appellants and their family.
But this was a brutal and unprovoked assault which has had very serious
consequences likely to be of a permanent nature. Given the accepted starting point
before mitigating factors of five years imprisonment, a discount of twelve months (or
20%) for the mitigating factors with a resulting sentence of four years cannot be seen
to be manifestly excessive in the case of either of the appellants.
[29]
In truth, there were few mitigating factors other than the payment of
reparation. In the case of Zharn Burns, his guilty plea came long after his arrest and
only approximately one month before trial. He could not expect much credit on that
account. While he is only 18 years of age and had experienced some personal
difficulties, he was no stranger to crime and had several prior convictions for violent
offending. There was nothing to suggest that prior penalties imposed on him had
materially inhibited his offending.
[30]
Craig Burns had the advantage of a much better previous record. Indeed, his
only relevant prior conviction was for common assault in 1978. That conviction was
too old to have any material bearing on his sentencing. On the other hand, his age
and level of maturity was such that he ought not to have become involved in the
assault at all. Instead, he was found by the jury to have participated in the assault,
with little to differentiate himself and his son in the levels of their involvement.
Unlike his son, Craig did not have the advantage of a guilty plea. Apart from his
previous good record, there were few mitigating factors in Craig’s favour other than
the issue of reparation, to which we now turn.
[31]
The payment of reparation was a relatively large sum, it was paid only with
substantial financial hardship, and has been of some benefit to the victim. However,
to arrive at a sentence of three years as submitted on behalf of the appellants, would
imply a 40% reduction from the accepted starting point of five years before
mitigating factors. We are not persuaded that a discount of that magnitude is
warranted in the circumstances of this case. While the sentences were relatively
stern, we do not consider them to be manifestly excessive nor inappropriate in the
circumstances. They were within the range of available sentences and we see no
reason to interfere with them.
Result
[32]
Both of the appeals against sentence are dismissed.
Solicitors:
Crown Law Office, Wellington