IN THE COURT OF APPEAL OF NEW ZEALAND
CA831/2013
[2014] NZCA 119
BETWEEN
THE QUEEN
Appellant
AND
JOHN DAVID WRIGHT
Respondent
Hearing:
12 March 2014
Court:
Wild, Goddard and Clifford JJ
Counsel:
S B Edwards for Appellant
R A Harrison for Respondent
Judgment:
3 April 2014 at 10.30 am
JUDGMENT OF THE COURT
A
The application for leave to appeal is granted.
B
The appeal against sentence is allowed.
C
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 2014.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
R V WRIGHT CA831/2013 [2014] NZCA 119 [3 April 2014]
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 2013.
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-2013-006-180, 13 November 2013 [Sentencing notes].
[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.
[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 Nuku3 – 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
2
3
4
R v Wright DC Blenheim CRI-2013-006-180, 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.
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.
[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).
[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
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 2005.
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.
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
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.
Solicitors:
Crown Law Office, Wellington for Appellant.