IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000002 [2015] NZHC 921

BETWEEN	ANDREW STEVEN TRAINOR
Plaintiff	

AND	
THE QUEEN Defendant	

Hearing:	4 May 2015	

Appearances:	
J A Westgate for Appellant
JNP Young for Crown	

Judgment:	
6 May 2015	

JUDGMENT OF DUNNINGHAM J

[1]	Mr Trainor appeals against the sentence imposed in the District Court for the following offences to which he pleaded guilty:1

(a)	assault with intent to injure;2

(b)	kidnapping;3 and

(c)	theft of a motor vehicle.4

[2]	The District Court Judge sentenced Mr Trainor to two years three months for the  kidnapping  charge  and  imposed  concurrent  sentences  of  18  months  and
12 months for the charge of assault with intent to injure and the charge of theft,

respectively.

1	R v Trainor [2015] NZDC 1356.
2	Crimes Act 1961, s 193.
3	Crimes Act 1961, s 209.
4	Crimes Act 1961, s 227(1)

TRAINOR v THE QUEEN [2015] NZHC 921 [6 May 2015]

[3]       Critically, for the purposes of this appeal, the lead sentence of two years three months’ imprisonment  was  imposed  cumulatively  on  a  previous  two  year sentence imposed for charges of male assaults female and the breach of a protection order,5  (“the male assaults female offending”) resulting in a total end sentence of four years three months’ imprisonment.

[4]       Mr Trainor appeals on the basis that:

(a)	the sentence was manifestly excessive; and

(b)	a different sentence should have been imposed.

[5]       Through counsel, he argues that a greater discount should have been given to reflect the totality principle and the end sentence on the charges to which he pleaded guilty should, taking into account the existing two year sentence, result in an overall sentence of no more than three years and three months instead of the four years and three months which resulted.

The kidnapping offending

[6]       The charges to which Mr Trainor pleaded guilty arose out of events occurring on 1 November 2013.  The victim was enticed to the home of the victim’s ex partner, Ms Fuller, through texts sent on her phone by Mr Trainor who was Ms Fuller’s partner at the time.  A third person, Mr Bain, was also arranged to be there as the intention was to assault the victim and question him about money they believed he owed them.  When the victim arrived, Ms Fuller met him, but when he came inside, Mr Trainor emerged, exchanged some words with the victim and then attacked him, hitting him multiple times in the face.  After initially fighting back, the victim was overcome.  He fell to the ground in a foetal position where Mr Trainor kicked him in the head and side of his body.

[7]       The assault was only interrupted by a period of questioning at which point the victim was threatened with extreme physical violence with the intent of making him
fear for his life.  Mr Bain and Ms Fuller also took part in the attack.  At one point

5	R v Trainor DC Invercargill CRI-2014-025-592, 13 November 2014.

Ms Fuller attempted to hit the victim with an axe but missed, breaking a handle on the oven.  The victim was made to clean up his own blood and then his keys, boots and cell-phone were taken.

[8]       The victim was then made to get into the front seat of his own car, at which point Mr Trainor drove him 10 kilometres to a rural location where he was told to get out.  He was left on the side of the road at approximately 11.30 pm.  Mr Trainor later sold the victim’s vehicle to an associate and it was only recovered three weeks later with items missing and damage done to the interior.

[9]       The victim suffered two black eyes, lacerations to his head and face, bruising around the left side of his neck and ear, a sore neck and shoulders, sore and bruised ribs, a cut to his right shin and a puncture to his right arm above the elbow.

District Court Judgment

[10]     At the time of sentencing, Mr Trainor was already in custody as a result of being sentenced for the male assaults female offending against his partner, Ms Fuller, although this offending occurred after the kidnapping offending.

[11]     The Judge took the kidnapping charge as the lead offence which carries a maximum term of imprisonment of 14 years.  Although there is no tariff case for kidnapping, the Judge noted:6

It does seem, however, that when unlawful detention is accompanied by violence the range of penalties is somewhere by way of a starting point in the range of about two to five years’ imprisonment.

[12]     The  Judge  identified  the  following  aggravating  features  of  Mr  Trainor’s

offending:7

(a)	the level of violence; (b)	premeditation;

6	At [11].
7	R v Trainor [2015] NZDC 1356 at [8].

(c)	vulnerability of the victim; (d)	use of a weapon;
(e)       theft of a vehicle; and

(f)       the injuries sustained were not minor.

[13]     The Judge then went on to explain how he arrived at the sentence to be imposed as follows:

[15]      Giving such weight as I can to that principle [of totality], I take the view that the starting point should be as counsel have argued for – three years three months as that takes into account the aggravating factor (sic), that there should be then an allowance for the guilty plea and a full 10 month credit  is  given  in  relation  to  that  (which  is  25 percent);  that  brings  the sentence back to 29 months.  But then one has to look at the totality because this sentence that I impose must be cumulative on the earlier sentence of two years.

[16]      The view that I have formed is that sentences should then be made up in this way:

	Kidnapping – a sentence of two years three months.

	Assault with intent – 18 months.

	Theft – 12 months.

[17]      All of these sentences are concurrent with each other.   The lead sentence then being two years three months, and that should be cumulative on the two years. The end result is a sentence of four years three months.

Submissions for the appellant

[14]     The appellant submitted that the District Court Judge was wrong to impose a cumulative sentence of  two  years and  three months  on  an  existing sentence of two years for the unrelated male assaults female offending.  He said this resulted in an overall sentence that was manifestly excessive and, had all matters been dealt with at the same time, the appropriate outcome would have been an overall sentence of three years three months’ imprisonment, not four years three months’ imprisonment.

[15]     In effect, it was argued that, while the 27 month sentence imposed for the kidnapping and related charges was not inappropriate, had he been sentenced for the male assaults female offending at the same time, they would only have warranted a one year uplift.   In other words, when taking into account the totality principle, a further 15 month sentence is all that should have been imposed by the District Court on the kidnapping charge.

Submissions for the respondent

[16]     The Crown submission is simple.   The end sentence of four  years three months for the two sets of offending, although stern, was not manifestly excessive. A cumulative sentence was open to the Judge on principle and the end result was within his discretion.  The sentencing Judge did, correctly, take totality into account and the sentence imposed for the kidnapping charge was well within range so the appeal should fail.

Jurisdiction

[17]     It is well understood, the appellant may appeal the sentence imposed as of right.8   As the first appeal Court,9  this Court must only allow the appeal if satisfied that:10

(a)	for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)	a different sentence should be imposed.

Application of the totality principle

[18]     The  outcome  of  this  appeal  turns  solely on  whether  the  Judge  correctly approached considerations of totality when imposing sentence for the kidnapping
and related charges.

8	Criminal Procedure Act 2011, s 244.
9	Section 247.
10	Section 250.

[19]     Section 85 of the Sentencing Act 2002 provides:

85 Court to consider totality of offending

(1)        Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)        If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)        If only concurrent sentences are to be imposed,—

(a)        the  most  serious  offence  must,  subject  to  any  maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)        each  of  the  lesser   offences  must  receive  the  penalty appropriate to that offence.

[20]     The Court of Appeal in R v Bradley, stated, that as a general rule, cumulative or consecutive sentences should not be such “as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole”.11

[21]     Where  separate  sentences  have  been  imposed  for  different  offences,  the proper  approach  on  appeal  is  to  assess  what  would  have  been  the  appropriate sentence had the offender been sentenced by one Judge for all the offences involved on the one occasion.12

[22]     That was the approach in R v Nuku where, when considering the appeal of the appellant who had been sentenced on various dates for unrelated offending, the Court of Appeal held:13

It is, we believe, proper, however, that the task of reviewing these sentences should be undertaken on the basis of assessing what would have been the

11	R v Bradley [1979] 2 NZLR 262 (CA) at 263.
12	R v Nuku [1969] NZLR 343 (CA).
13	At 344.

appropriate  sentence  to  be  imposed  on  the  appellant  if  one  Judge,  on
11 October 1968, had sentenced him for all the offences on which he had been convicted under the two indictments.

[23]     The correct approach on this appeal, then, is to consider all of the offending at the same time, albeit taking the kidnapping as the lead offence.   Because the earlier male assaults female offending was a completely unrelated event, it will attract a cumulative sentence.  However, taking both sentences into account, it will be  necessary  to  determine  whether  the  totality  of  the  sentence  is  manifestly excessive.  If it is, it will be necessary to reduce the sentence for the kidnapping to reflect a more appropriate sentence, as that is the one under appeal.

Sentencing for the kidnapping related offending

[24]     The maximum term of imprisonment that can be served for kidnapping is

14 years, and there is no tariff case for the offence.14     However, there is no real dispute that the starting point adopted by the Judge of three years and three months was appropriate,  nor was there any issue taken with the uplifts applied for the appellant’s previous history of violent offending, or the discount to reflect the guilty plea.  The only real issue in dispute is whether the Judge has correctly applied the totality principle, by reducing the calculated sentence of 29  months back to  an imposed sentence of 27 months.

[25]     The appellant’s position was that the end sentence of two years three months was appropriate for the kidnapping charge, but, had the sentencing for all offences been determined by one Judge, the earlier male assaults female offending would have attracted an uplift of only one year.

[26]     However, I must approach it in light of the reality of the situation where the sentence for the male assaults female offending is fixed and I can only reconsider the sentence on the kidnapping and associated charges.  Having considered a range of sentences  imposed  for  kidnapping  and  related  charges,  I  am  satisfied  that  the
sentencing Judge’s sentencing on the kidnapping charge was entirely appropriate and

14	Crimes Act 1961, s 209.

well within range.15   Indeed, if anything, the sentence first arrived at was at the lower end of the available range.

[27]     That said, and while it is largely a matter of impression, I consider that the end sentence of four years and three months falls outside the sentence which would have been imposed to take account of the totality of the offending if one Judge, on
29 January 2015, had been sentencing the appellant for all the offences on which he had been convicted.  In the circumstances, I consider a total term of imprisonment of between three and a half and four years, would have been within range.

[28]     In my view a total sentence of three years and 10 months, which means a sentence of 22 months should be imposed on the kidnapping charge, adequately reflects the totality of the offending, and the need to impose distinct and cumulative sentences for the two separate tranches of offending, while not offending the totality principle.   A sentence of that length represents a meaningful reduction from the sentence of 27 months, and so (just) means the sentence imposed falls within the category of  being  manifestly excessive  warranting  the  imposition  of  a different sentence.

[29]     Accordingly, the sentence of two years and three months on the kidnapping charge (which is the lead offence) is quashed on appeal and a sentence of 22 months is substituted. The sentences on the other charges remain unaffected.

Solicitors:
J A Westgate, Barrister, Dunedin
Russell Preston Law, Invercargill

15	R v McCord [2007] NZCA 312, R v Wharton (2003) 20 CRNZ 109, R v Hayes CA171/06,
20 July 2006, Griffin v Police HC Whangarei CRI 2005-488-00-9 and 11, 14 April 2005.