In the Court Of Appeal of New Zealand
CA183/2010
[2010] NZCA 304

BETWEEN	ANTHONY HADDON WILLIAMS
Appellant

AND	THE QUEEN
Respondent

Hearing:	8 July 2010

Court:	Ellen France, Stevens and Wild JJ

Counsel:	E J Forster for the Appellant
M Inwood for the Respondent

Judgment:	19 July 2010 at 10 am 

JUDGMENT OF THE COURT	

A	The appeal is allowed.  
B	The sentence of nine and a half years imprisonment imposed by the District Court is quashed, and a sentence of eight years imprisonment substituted.
C	The fines, which were remitted without jurisdiction, are reinstated. 

REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]	On the ground that it is manifestly excessive, Mr Williams appeals against a sentence of nine and a half years imprisonment imposed on him by Judge Mackintosh in the Napier District Court on 23 March this year.
[2]	For the appellant, Mr Forster contends the Judge’s sentencing starting point of 12 years imprisonment was too high, the uplift of two years she applied because of the appellant’s previous convictions too large, and thus the derived ultimate sentence manifestly excessive.
[3]	The Judge sentenced the appellant after he pleaded guilty to two charges of wounding with intent to cause grievous bodily harm, one charge of kidnapping, one charge of burglary, two charges of threatening to kill, one charge of theft from a dwelling house, one charge of theft of a vehicle and five charges of assault with a weapon.
The facts
[4]	The charges arose out of what the sentencing Judge described as “a most appalling situation”.  The main victim of the offending was a 58 year old woman who, for a number of years, had been living with the appellant’s grandfather.  Following the admission to hospital of the grandfather early this year, the appellant and his two co-accused went to the grandfather’s home and accused the victim of stealing from the grandfather.  They forced her to leave the home and go with them in her car to the house of her former husband, who had agreed to accommodate her.  One of the co-accused then stole the victim’s car and cell phone.  
[5]	A day or so later, on 7 January this year, the appellant and his co-accused went to the victim’s new address.  They again accused her of stealing money, searched through her belongings and stole a number of them including her wallet and jewellery.  They came back later in the day.  After again accusing the victim of theft, the appellant dragged her outside by her hair where they proceeded to punch and kick her for between five and ten minutes until she lost consciousness.  When the appellant came back into the house his hands were covered in blood.  There was a lot of blood outside, below the steps to the house.  The appellant and his co-accused could obviously see that the victim needed hospital treatment.  They threatened her that she would be “history” unless she told people at the hospital that she had been beaten up by a group of unknown girls.  She was then taken to the hospital where she was admitted and treated for a fracture to her right eye socket and severe bruising.  She was discharged the following day. 
[6]	Later that day, 8 January, the appellant and his co-accused returned to the victim’s new address (her former husband’s home) to check that she had not told the Police what they had done to her.  Oddly, one of the appellant’s co-accused then invited the victim and her former husband to dinner.  It seems they went because they were too scared to refuse.  Over dinner they had to listen to the appellant and his co-accused discussing taking the victim to the river and beating her to death.  They talked about burning her body and joked that this was her last supper.
[7]	After dinner the appellant and his co-accused took the victim down to the Ngaruroa River.  She was taken a distance away from the car and then again viciously punched and kicked until she lost consciousness.  One of the appellant’s co-accused finally called a stop to this.  The victim was then taken home semi‑conscious and covered in blood.  When they left, the appellant and his co‑accused, without permission, took the car owned by the victim’s former husband.
[8]	As a result of this second beating, the victim spent the next two days bedridden, drifting in and out of consciousness, unable to speak or eat or care for herself.  She had no recollection of this period.  Despite that, the appellant and his co-accused returned and tried to get the victim to swear on the Bible that she had not told anyone that they had beaten her.  She was not able to speak.
[9]	The victim and her former husband were now very frightened.  As soon as the victim had recovered sufficiently, her former husband took her to stay with a family member.  A day or so later, on 13 January, the victim was seen by the appellant and his co-accused.  She was travelling in a car with four other people.  The appellant and his co-accused were in the victim’s car, which was being driven by a Ms Sullivan.  Ms Sullivan flashed the car lights in an unsuccessful attempt to stop the car in which the victim was travelling.  She then drove in front of the car forcing it to stop.  When the driver of the car in which the victim was travelling tried to reverse away, Ms Sullivan rammed it.  Despite this, the other driver managed to drive off to his own home.  The appellant and his co-accused followed in the victim’s car.  Meanwhile, one of the people the victim was travelling with used her cellphone to make a 111 call to the Police.  The Police instruction was that the people in the car should lock themselves in until the Police arrived.  When the Police arrived the appellant and his co-accused were trying to smash the windows of the car.  The appellant had armed himself with a stick in an attempt to do this.
The Judge’s sentencing
[10]	After outlining the facts, Judge Mackintosh referred to the victim’s statement, describing it as “tragic reading”.  The Judge then noted that the pre-sentence report mentioned the appellant’s “dysfunctional and violent upbringing”, and the appellant’s acceptance that he had acted in some sort of highly violent state and could well have killed the victim had he not been told to stop.  The Judge said “You are a violent and dangerous man in my view”.  
[11]	Next, the Judge noted the appellant’s expression of remorse and desire to turn his life around and become a better person.  
[12]	The Judge identified as aggravating features of the offending:  an extreme and prolonged act of violence over several days; premeditation; serious injuries to the victim; attacks to the victim’s head; an attack on the victim in her own home; a vulnerable victim; two discrete episodes of violence combined with threats to kill and other particularly frightening behaviour.  Mitigating factors were the appellant’s guilty pleas which the Judge accepted were entered at the earliest opportunity, and his cooperation with the Police.
[13]	The Judge agreed with counsel that the offending fell into band 3 of R v Taueki.  She expressed the view that there were a number of aggravating features warranting an uplift from nine years imprisonment.  She then said this:
[12]	In my view, an appropriate starting point for this offence, bearing in mind the totality of the offending and as the Crown says, any one of these charges of themselves could well have brought this offending into that third category, I intend to take a starting point of 12 years’ imprisonment.  I am going to uplift that then for two years because of your previous convictions.  You have prior convictions for violence, aggravated robbery, assault and in my view, a significant uplift is warranted for that.  However, I will reduce it down by one third because of your guilty plea.  That is a total top end of 14 years.  You will get the full one third credit for that so on my calculation that makes it a total sentence of nine and a half years’ imprisonment.  Your fines will be remitted and I will order the reparation of $533.
[14]	Given the length of that sentence, the Judge considered a minimum non-parole period was not warranted.  By way of addendum, she then imposed lesser, concurrent, sentences for the other offences.
Counsel’s submissions and our decision
[15]	Although he accepted (as he had at sentencing) that this was Taueki band 3 offending, Mr Forster submitted that the Judge’s 12 years starting point was too close to the top of the band.  He maintained the appropriate starting point was 10 years.  In support of that submission, Mr Forster relied on R v Chankau and R v Nepe.  Taueki band 3 encompasses offending for which starting points in the range nine to 14 years are appropriate.  Mr Forster then submitted that the Judge’s uplift of two years for the appellant’s previous convictions was excessive.  He said that it was only the appellant’s 1999 conviction for robbery aggravated by use of a firearm that warranted any uplift, and that six months was appropriate.  Mr Forster concluded by pointing out that the one-third discount mandated by R v Hessell should have reduced the end sentence by four years eight months imprisonment, not the four years six months allowed by the Judge.  
[16]	Ms Inwood submitted Chankau and Nepe were of little assistance, because neither indicated that a sentence higher than that actually imposed would have been interfered with.  That was a caveat this Court entered in R v Mako about the usefulness of referring to other sentencing decisions.  Ms Inwood emphasised that the Judge was sentencing for two separate and distinct beatings.  She contended the first, on 7 January, would have justified a starting point of 11 years imprisonment, and the second one the following day, a starting point of eight years imprisonment, before any regard was had to the associated offending.  On that approach, Ms Inwood argued that the Judge could justifiably have adopted a starting point of 14 years for the totality of the offending, rather than the 12 years she selected.
[17]	In that way, Ms Inwood felt able to submit that the “total top end of 14 years” adopted by the Judge was within range.  She conceded that the uplift of two years for the appellant’s previous convictions was excessive.  She took no issue with Mr Forster’s submission that six months was the appropriate uplift, adding that she would “not have been surprised” if there had been no uplift.  In stressing that it was the end sentence that was important, rather than the way in which the sentencing Judge had arrived at it, Ms Inwood referred us to decisions of this Court such as R v S and R v Jarden.
[18]	Finally, Ms Inwood submitted that the Judge had remitted the appellant’s fines without jurisdiction, because she had not followed the procedure stipulated by s 88 Summary Proceedings Act 1957.
[19]	We are firmly of the view that a starting point of 12 years imprisonment was the highest available to the Judge, even after making appropriate allowance for the appellant’s previous convictions.  As the Judge observed, this was “appalling” offending.  But the sad fact is that it was nevertheless not at the top end of Taueki band 3.  Consideration of the three examples given by this Court in Taueki demonstrates that.  Present in each one of those examples, but absent here, was the use of a weapon or weapons, and the infliction of life-threatening, lasting or permanent injuries.
[20]	Ms Inwood pointed out that the appellant has 29 previous convictions.  True, but only one or at most of two of them were relevant in the sense that they might justify an uplift in the starting point to reflect that this was a repetition of previous similar offending.  Those two were the appellant’s conviction in 1999 for aggravated robbery using a firearm, and his conviction in 2004 for a domestic assault “manually”, that is without using a weapon.  For the first he was sentenced to five years imprisonment, though for cannabis cultivation and unlawfully getting into a motor vehicle as well.  For the assault he was sentenced to 200 hours community work.  Given the age of the first of these sentences and the marginal relevance of the second, we consider that no uplift is warranted to the starting point of 12 years imprisonment.
[21]	There is no issue that the appellant’s early guilty pleas entitled him to a one-third discount.  Applied to the correct starting point of 12 years, that reduced the sentence by four years to eight years imprisonment.
[22]	Although District Court judges routinely remit fines when imposing a lengthy sentence of imprisonment, we agree with the Crown submission that that can only lawfully be done pursuant to s 88 Summary Proceedings Act.  We agree that the appellant’s fines were remitted here without jurisdiction, with the result that they stand. 
Result
[23]	We quash the sentence of nine and a half years imprisonment imposed by the Judge.  On each of the two charges of wounding with intent to cause grievous bodily harm and on the kidnapping charge, we substitute a sentence of eight years imprisonment, those sentences being concurrent.  The concurrent sentences imposed by the Judge on the other offences stand. 
[24]	The end result is that the appellant is sentenced to an effective term of eight years imprisonment. 

Solicitors: 
Crown Law Office, Wellington for the Respondent