JOHN AITKEN v THE KING [2022] NZCA 593

JOHN AITKEN v THE KING [2022] NZCA 593 [1 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA6/2022[2022] NZCA 593BETWEEN JOHN AITKENAppellantAND THE KINGRespondentHearing: 30 September 2022Court: Miller, Brewer and Moore JJCounsel: C G Tuck, X Wang and A O Belloir-Spense for AppellantB J Thompson for RespondentJudgment: 1 December 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Background[1] John Aitken was charged with injuring with intent to cause grievous bodilyharm1 and threatening to kill2 after he violently attacked a person who he believed hadassaulted his son a few days earlier.1 Crimes Act 1961, s 189(1). Maximum penalty of 10 years' imprisonment.2 Crimes Act 1961, s 306(1)(a). Maximum penalty of seven years' imprisonment.[2] Mr Aitken elected trial by jury. On the morning his trial was scheduled to start,he sought an adjournment in order to locate and call a witness in his defence.He claimed the assault in question was a pre-emptive strike which was justified inself-defence. Apparently, the witness could give evidence of events which occurredabout three days before the assault.[3] Judge Harding declined to grant an adjournment.3 He considered that theunavailability of the witness would not adversely affect Mr Aitken's fair trial rightsbecause the availability of an effective defence on the basis advanced in argument was"slim".4[4] Mr Aitken then pleaded guilty to both charges. On 15 December 2021, theJudge sentenced him to four years and nine months' imprisonment.5[5] Mr Aitken initially sought to appeal both his conviction and sentence. He hassince abandoned his conviction appeal. This judgment deals with the sentence appeal.The offending[6] On 24 February 2021, the victim, B, was sitting on a bench outside shops inMount Maunganui. Mr Aitken parked his vehicle outside the shops and got out.He walked directly towards B.[7] Mr Aitken then meted out a violent and sustained assault on B. He punchedhim about 10 times to the head and upper body. B was knocked unconscious and fellfrom the bench onto the footpath. With B on the ground, Mr Aitken continued hisattack. He stomped on B's upper body, kicked him twice in the head, struck his headtwice, and then a third time before, finally, punching him in the head another twotimes.[8] During the assault Mr Aitken told B to get out of town otherwise he would killhim. He asked him why he had picked on his son. B's cousin was present as these3 R v Aitken [2021] NZDC 18502.4 At [9]–[10].5 R v Aitken [2021] NZDC 24869 [Sentencing notes].events unfolded. She shouted at Mr Aitken asking what B had done. Mr Aitken'sresponse was that B "shouldn't go around smashing up 12 year old boys". He told herthat if she did not "shut up" he would cut off B's head and kill her with it.[9] Mr Aitken then left in his car.[10] B was taken to hospital. His injuries were serious. He was knockedunconscious. He suffered contusions to his head, blood in his lungs and severalfractured ribs. He is now permanently disabled as a direct result of the attack. He haslost vision in his right eye.District Court sentencing[11] Judge Harding considered that Mr Aitken's offending involved a "seriousunprovoked and unexpected attack".6 He placed it between bands 2 and 3 ofR v Taueki.7 He adopted a starting point of seven years' imprisonment on the injuringwith intent charge.8 He then applied a six-month uplift to account for the threateningto kill charge and Mr Aitken's relevant previous convictions.9[12] The Judge then applied a global 35 per cent discount for Mr Aitken's guiltypleas, personal background circumstances, attendance at a restorative justiceconference, completion of a rehabilitative course and remorse.10 The precise creditfor each factor was not articulated.[13] The Judge thus reached an end sentence of four years and nine months'imprisonment.11 He concluded that this was "quite some distance from any prospectof home detention", which he described as "not remotely feasible".12[14] The calculation of this end sentence involved a minor mathematical error.A 35 per cent reduction from the adjusted starting point of seven years and six months'6 At [14].7 At [14], referring to R v Taueki [2005] 3 NZLR 372 (CA).8 At [14].9 At [14].10 At [14]–[15].11 At [15].12 At [15].imprisonment yields a sentence of four years and 10 and a half months' imprisonment.This slight error meant that Mr Aitken's end sentence was one and a half months lessthan that intended by the Judge.Approach on appeal[15] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence should beimposed.13 The focus is on the sentence imposed, rather than the process by which itis reached.14 The Court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles.15 To this end the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not touse it.16Grounds of appeal[16] Mr Aitken's grounds of appeal are that the Judge erred by:(a) adopting a starting point that was too high; and(b) giving insufficient credit for personal mitigating factors.Did the Judge err by adopting a starting point that was too high?[17] In his written submissions, Mr Tuck, for Mr Aitken, argued that the Judgeadopted a starting point which was too high. He submitted Mr Aitken's offending wasspontaneous and the Judge erred by finding that premeditation was an aggravatingfactor. He also submitted that the remaining aggravating factors overlap, such that theoffending falls squarely within band two of Taueki.[18] However, at the hearing, this submission was not advanced with vigour.Mr Tuck acknowledged that challenging the starting point would be difficult.13 Criminal Procedure Act 2011, s 250(2).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].15 At [36].16 At [35].He conceded that it was within the available range. Instead, he focused his argumenton Mr Aitken's second ground of appeal, which is that insufficient credit was given onaccount of personal mitigating factors.[19] For completeness we will briefly address the starting point adopted by theJudge.[20] The aggravating factors and corresponding bands set out in Taueki areapplicable to sentencing for injuring with intent to cause grievous bodily harm,provided appropriate adjustments are made to reflect the lesser maximum penalty.17[21] Where the offence is wounding with intent to cause grievous bodily harm,starting points in band two range from five to 10 years' imprisonment, whileband three spans nine to 14 years' imprisonment.18 Injuring with intent to causegrievous bodily harm has a lesser maximum penalty of 10 years' imprisonment.19The starting point for Mr Aitken's offending must reflect that lesser maximum penalty.[22] Band two of Taueki is appropriate for offending involving two or three of thenominated aggravating factors.20 Offending is elevated to band three where it engagesthree or more of those aggravating factors and where their combination is particularlygrave.21[23] We consider that the Judge correctly identified the following aggravatingfactors as engaged:(a) Although the level of premeditation was limited, it did involveMr Aitken identifying B as the person he believed assaulted his son andthen determining to attack him.2217 R v Taueki, above n 7, at [9]. See also R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [37],n 39 where this Court noted that Taueki applies to offences involving intent to cause grievousbodily harm; and Solicitor-General v Milne [2020] NZCA 134 at [34]. See for example R v Wilkie-Morris [2016] NZHC 259; and R v Abbott [2013] NZHC 62.18 At [34].19 Crimes Act 1961, s 189(1).20 R v Taueki, above n 7, at [38].21 At [40].22 At [31(b)].(b) The violence against B was extreme and of an unprovoked nature.23B did not know his attacker and was sitting on a bench in a public placein the middle of the afternoon. We consider this factor to be present toa moderate to high degree.(c) B's head was targeted.24 The blows included repeated punches andkicks to B's head after he was knocked unconscious. We assess thisfactor as present to a high degree.(d) B suffered serious injuries.25 These included his head injuries,fractured ribs and blood in his lungs. The pre-sentence report and thevictim impact report both record B saying that he now suffers from avisual impairment where he is unable to see colours. This factor ispresent to a moderate to high degree.(e) B was vulnerable.26 He had no warning of the assault. The beating wassustained and continued after he lost consciousness. We consider thisfactor present to a moderate degree.[24] We also agree with Mr Thompson, for the Crown, that Mr Aitken's offendingis aggravated by the element of vigilante action involved.27 Mr Aitken's ownexplanation for his offending is that he believed B to have assaulted his son in the daysprior to the assault. Meting out violent retribution engages this factor.[25] The Judge placed Mr Aitken's offending between bands two and three,adopting a starting point of seven years' imprisonment.28 We agree that this startingpoint is within the range where bands two and three could overlap, after adjusting theTaueki bands to account for the maximum penalty of 10 years' imprisonment.23 At [31(a)].24 At [31(e)].25 At [31(c)].26 At [31(i)].27 At [31(m)].28 Sentencing notes, above n 5, at [14].[26] Given the number of aggravating factors identified above, it is difficult to seehow a starting point of seven years' imprisonment can be criticised. Indeed, it mightwell be at the lower end of the available range.Did the Judge err by giving insufficient credit for personal mitigating factors?[27] Mr Tuck and Mr Wang shared the principal argument on this appeal that theJudge gave insufficient credit for Mr Aitken's personal mitigating factors. The thrustof the argument was the Judge ought to have adopted a merciful approach toMr Aitken's personal circumstances. Mr Wang submitted that Mr Aitken's remorse,rehabilitative efforts and participation in a successful restorative justice conferencecould attract a discount of 20 per cent. Mr Tuck submitted that the discounts forMr Aitken's guilty plea and personal background circumstances should have beengreater. He submitted that giving appropriate weight to all of these factors would resultin a further one-year reduction.[28] The 35 per cent discount applied by the Judge took into account Mr Aitken'sguilty pleas, personal background circumstances, attendance at a restorative justiceconference, completion of a rehabilitative course and remorse.[29] We accept that the restorative justice conference was successful insofar as thevictim accepted Mr Aitken's apology. It is also evident that Mr Aitken is genuinelyremorseful and has completed a rehabilitative programme. Those factors are worthyof credit. We nevertheless view a 20 per cent discount for those factors as on thegenerous side, even if a discount of that magnitude was available to the Judge.[30] If we were to apply a 20 per cent discount for those factors, the remaining15 per cent credit would be attributable to Mr Aitken's guilty pleas and personalcircumstances. We consider those discounts within the available range. A five per centdiscount for a guilty plea entered on the morning of trial is not uncommon, althoughgreater allowance has been made in some cases.29 Here the pleas were entered in the29 See for example McDonald v R [2021] NZCA 531 at [37]. The greater discount allowed in thatcase is justifiable on the basis that it involved historic child sex offending, meaning that the guiltyplea avoided the retraumatisation of the victims through having to give evidence and providedthem a degree of closure.face of what would appear to be an overwhelming Crown case.30 A five per cent creditwould have been appropriate. Nor was a 10 per cent discount for Mr Aitken's personalcircumstances insufficient, having regard to the contents of the cultural report.His upbringing included exposure to violence and gangs, which has some nexus withthe index offending insofar as it involved him resorting to violent retribution. We donot consider those factors justify any greater discount.[31] Nor do we consider that the Judge erred by not adopting what Mr Tuck referredto as a merciful approach. A component of that submission characterises Mr Aitken'soffending as a spur of the moment attack on someone who he believed attacked hisson. This aspect of mitigation goes to the gravity of the offending, rather than personalcircumstances. The personal circumstances which call for a merciful sentence areMr Aitken's remorse, rehabilitative progress and his successful restorative justiceengagement. For the reasons given, we consider those factors were properlyrecognised by the Judge as part of the global discount, especially taking into accountthe favourable one and a half months' discrepancy resulting from the mathematicalerror. The total discount was within the available range for the identified combinationof factors.[32] This ground of appeal must fail.Result[33] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].