KARL GREENING v R [2023] NZCA 432

KARL GREENING v R [2023] NZCA 432 [11 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA590/2022[2023] NZCA 432BETWEEN KARL GREENINGAppellantAND THE KINGRespondentHearing: 25 July 2023Court: Miller, Moore and Palmer JJCounsel: G H Vear and B M Bosomworth for AppellantN L Jamieson and G A Kelly for RespondentJudgment: 11 September 2023 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B Leave is granted to tender the s 27 report.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Greening appeals his sentence of six years and nine months' imprisonmenton one charge of wounding with intent to cause grievous bodily harm.1 He wassentenced concurrently to one month's imprisonment on the charge of obstructing orhindering a medical officer of health.21 R v Greening [2022] NZDC 11352 [Sentencing notes] at [15].2 At [15].[2] The sole ground of appeal is that insufficient credit was given for personalmitigating factors disclosed in a report prepared under s 27 of the Sentencing Act 2002for this appeal.[3] The appeal is approximately three and a half months out of time. Mr Greeninghas filed an affidavit explaining that there was a breakdown in his relationship withhis previous lawyer and he was transferred around several prisons. The extension oftime is granted.Narrative of the offence and the sentencing[4] The charge of obstructing a medical officer arose out of Mr Greening'sinsistence on travelling between addresses for non-essential purposes during theCOVID-19 lockdown. On 5 April 2020 he was tested for the virus and given clearinstructions that he should remain isolated, given that he had been exposed to it. Hedid not follow these instructions. The police spoke to him and directed him to returnto his isolating address. Instead, he went on 8 April 2020 to an address where he hadformerly been a boarder.[5] There he drank beer with the victim, a 72-year-old man, who was lying in hisbed. He assaulted the victim, targeting the victim's head. It was alleged that he toldthe victim that he would kill him. One third of the victim's ear was cut off with a sharpobject, likely a knife, and he received a 12cm laceration wound to the back of his head,exposing the skull.[6] In his interview with the writer of the pre-sentence report, Mr Greening statedhe and the victim had got into an argument over money he had transferred into thevictim's account, having lost his own bank card. He said that the victim refused torepay him.[7] Mr Greening elected trial. We were told that his proposed defence was that heacted in self-defence. On the information before us, that defence had no prospects ofsuccess. When that was put to Ms Vear, who appeared for Mr Greening on appeal, shesuggested that the decision to plead not guilty might have had something to do withmental health issues at the time. The record does include reports into his mental state,but they conclude he was not unwell and suggest strongly that he was malingering inan attempt to avoid trial.[8] Mr Greening was held in custody, where he remained until sentencing on17 June 2022. His attempt to secure bail was unsuccessful because of the risk offurther violent offending.3 The material prepared for sentencing suggests that hepresents a very high risk of reoffending. He has an extensive history that began in1984 and now amounts to 112 convictions, including approximately 40 for offencesof violence and misusing drugs.[9] On 7 October 2020 Judge Macdonald gave Mr Greening a sentence indication,which he declined. The starting point was eight years' imprisonment with an uplift ofeight months for his past offending history and the COVID-19 restrictions offending.A 15 per cent discount would be allowed for guilty pleas. The sentence could bereduced for other mitigating factors, including a s 27 report. It would not exceed sevenyears.[10] On 15 October 2021 Judge Orchard advised Mr Greening that if he pleadedguilty she would sentence him in accordance with the sentence indication. After whatshe described as more "shilly-shallying" he agreed to accept it and pleaded guilty on25 January 2022.4[11] There was a long delay before sentencing on 17 June. Evidently that was due,at least in part, to Mr Greening's wish to obtain a s 27 report. At sentencing he claimedthat he had wanted to get a report but no writers were available. The Judge respondedthat she knew that was not correct because the Court had been receiving s 27 reportsthroughout lockdowns.5 She remarked, based on her knowledge of Mr Greening, thatshe sometimes thought he had wanted to delay, though she assured him that would notcount against him in the sentence calculation.6 She declined to adjourn further andsentenced him on the same day.3 R v Greening [2020] NZDC 23671 at [6].4 Sentencing notes, above n 1, at [3].5 At [10].6 At [2].[12] We admitted an affidavit of former counsel, Martin Hislop, about thesentencing process. The substance of that evidence was that a report writer had beenbriefed and commenced the process of interviewing but she was having troublecontacting whānau and needed more time to complete her report. Counsel had beenassigned more than a year before sentencing. We were not told when the report writerwas briefed. Nor does the record indicate that the Judge was told a report was inprogress; the sentencing notes record rather that she was told no report writer wasavailable. This evidence does not detract from the Judge's view that there had beenample time to prepare the report. On the face of it, Mr Greening had chosen to delayand taken the risk that he would be denied a further adjournment.No error in refusal to adjourn[13] We do not accept that the Judge erred by refusing to adjourn in thecircumstances. She did not deny Mr Greening his right to have the Court hear fromany person called to speak to his background, any connection to the offending, and theavailability of whānau support. He had had a reasonable opportunity to arrange as 27 report. Having failed to commission one, he could have called on the whānaumembers or supporters whose information would have been collated by the reportwriter.7 We do not know what was said by counsel, who could be expected to takeinstructions and address these matters.[14] Further, the author of the PAC report had spoken to Mr Greening about thematters listed in s 27(1). The report notes his iwi affiliation and identifies his whānauand supporters, recording that on release he will build a cabin on whānau land atŌhaewai. He explained that he was the subject of a whāngai adoption to his aunt andher husband. He described his early childhood as happy but also disclosed that he wasabused from age five years to nine years by his whāngai father and an uncle. He alsowitnessed his whāngai father's suicide. That led to him being returned to his birthfamily, where his life changed to one of daily beatings and parental alcohol abuse.7 We were given to understand that the report was to be prepared by a report writer engaged for thepurpose; it was not suggested that she had personal knowledge of Mr Greening.[15] The Judge discussed these matters. She afforded Mr Greening a five per centdiscount for cultural factors, based on the PAC report. The total discount includingguilty plea was 22 per cent, after the Judge reduced the sentence a further two monthsto give greater credit for background factors.Leave to tender a s 27 report on appeal[16] On appeal, Mr Greening tendered a s 27 report, prepared by a different reportwriter, and sought leave to adduce it, relying on Mark v R.8 For the Crown,Ms Jamieson invited us to discount it on the ground that the primary informationcontained in the s 27 report was already before the District Court Judge in thePAC report.[17] Section 27 of the Sentencing Act envisages that those called by the offender toaddress the court will speak on the offender's background and how that may haverelated to the offence, the availability of community and family support, andalternative resolution processes and sentencing outcomes. The section does not treatthis information as evidence. It provides rather that the sentencing court must considerthe information unless that is inappropriate or unnecessary for some special reason.9The court may give the information such weight as it thinks appropriate.10[18] It follows that a s 27 report tendered for the first time on appeal strictly doesnot necessarily fall into the category of fresh evidence. But the question whether thesentence was manifestly excessive ordinarily is answered by reference to informationthat was before the sentencing judge. For that reason, this Court has indicated that theoffender must explain why new information should be considered on appeal.11[19] In Berkland v R the Supreme Court took a stricter approach.12 A report wasintroduced on appeal. The Crown objected.13 The Supreme Court treated the report8 Mark v R [2019] NZCA 121 at [16].9 Sentencing Act 2002, s 27(2).10 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [141].11 This Court has previously held that s 27 reports should not be produced for the first time on appeal:Carroll v R [2019] NZCA 172 at [8]. See Laipato v R [2021] NZCA 562 for an example of a casewhere leave to adduce a s 27 report on appeal was declined.12 Berkland, above n 10.13 At [172].as if it were fresh evidence.14 The Court held that leave was required and assessed thereport by considering whether it was fresh, why it was not adduced at sentencing, itscogency for sentencing purposes, and the risk of a disproportionate outcome should itbe excluded.15[20] We respectfully consider that approach appropriate for another reason. As 27 report often includes material which the Sentencing Act does treat as evidence forsentencing purposes.[21] For example, reports sometimes include the offender's account of the offenceor their role in it. (Such information is not itself background information to whichthose called to address the court on the offender's behalf can attest, but it is sometimessaid to relate to the commission of the offence or to be relevant in some way toavailable sentencing options.) Information about the nature of the offence or theoffender's role in it falls into the category of mitigating facts which must be provedby the offender under s 24 if they are material to sentence and the prosecutor disputesthem.16[22] Section 27 reports also include factual information about the offender whichmay justify a lesser sentence. These are also mitigating facts for purposes of s 24, butthey must be proved if they are a) material to sentence, b) not already proved byevidence at trial, and c) not essential to the plea or finding of guilt.[23] In practice, mitigating information is usually handled in a non-technical way,the sentencing judge assigning such weight to it as the judge thinks appropriate.17 Itis important not to erect barriers to participation by the offender's family, whānau orcommunity, and what they have to say about background is often uncontroversial. Butit remains the case that under s 24 mitigating facts are evidence and the prosecutorretains the right to insist on proof.1814 At [174].15 At [174]. See also Orchard v R [2019] NZCA 529, [2019] 2 NZLR 37 at [23] as to this Court'sapproach to new evidence offered in sentence appeals.16 Sentencing Act, s 24(3) and (2)(d).17 Berkland, above n 10, at [141].18 Sentencing Act, s 24(2)(d).[24] In this case we have rejected Mr Greening's attempt to justify his failure tooffer a report at sentencing, but the Crown did not invite us to exclude the reporttendered on appeal. We grant leave accordingly.Does the s 27 report change anything?[25] We agree that, although concise, the PAC report contained the substance of theaccount given in the s 27 report. The only part that might be said to be missing is theaccount of systemic deprivation suffered by Māori, and in particular Ngāpuhi, butMs Vear understandably did not suggest that Judge Orchard might have been unawareof that. As the Supreme Court observed in Berkland, such information is availablefrom authoritative sources and what is required in a s 27 report is not a generaliseddissertation but a succinct summary based on the experience of the offender's owncommunity.19[26] The report contains more detail of abuse and cultural deprivation experiencedby Mr Greening and traces it, in part, to the impact of military service on the men ofpast generations in his whānau. It also seeks to recast what Mr Greening hadpreviously described as the positive parts of his childhood. The abuse is confirmed byMr Greening's brother. However, the Judge did accept the causal connection betweenMr Greening's deprived and abusive upbringing and his offending, and also his alcoholabuse.20[27] The report also addresses prospects for the future, confirming that Mr Greeninghas family support and will not be denied access to whānau land. He may be allowedto work there on release. However, the s 27 report is in some respects less positiveabout these matters than the PAC report. It is not said that he will be able to build onwhānau land, with the implication that he cannot live there permanently. His supportis qualified; most of Mr Greening's relationships are "burnt" and his brother will onlysupport him "to a point". There is wariness about supporting him until he has shownhe has addressed his violent behaviour. He may benefit from programmes offered ina custodial setting and will need support when released.19 Berkland, above n 10, at [146].20 Sentencing notes, above n 1, at [12]–[14].[28] The index offending was very serious and given Mr Greening's high risk ofreoffending, community protection had to be taken into account. These considerationsmay constrain discounts.21 There was no alternative to a long sentence ofimprisonment and no question of alternative processes that might resolve issuesrelating to the offence. (The Judge noted that Mr Greening offered restorative justicebut found that entirely unrealistic, and that conclusion was not disputed before us.22)A s 27 discount is available in such cases, but background factors may be lessmeaningful.23 In this case there is also reason to doubt that whānau support canprevent further offending.24 So the question is what discount ought to have beenoffered to recognise the ways in which Mr Greening's background may havecontributed to the lead offence.25[29] Ms Vear argued that the allowance of five per cent was inadequate. In effectthe discount given was seven per cent, the Judge remarking that a little more discountshould be given for background factors and reducing the final sentence by a furthertwo months.26 Had we been sentencing Mr Greening ourselves we would haveallowed a discount of 10 per cent. But that would result in a minor adjustment of aboutthree months in a long sentence, which is not enough to justify appellate intervention.[30] Further, any adjustment must be offset against what we regard as a generousdiscount given for belated guilty pleas in circumstances where there was never a viabledefence. Ms Vear argued that were we to take account of this we would underminethe sentencing indication regime. We reject that submission. Mr Greening wassentenced in accordance with the indication. He has chosen to appeal. The appellatequestion is whether the end sentence was manifestly excessive.27 All thecircumstances, including the guilty plea discount, may be taken into account whenanswering it.21 Arona v R [2018] NZCA 427 at [61].22 Sentencing notes, above n 1, at [11].23 Berkland, above n 10, at [112].24 Sentencing Act, s 27(1)(d).25 Section 27(1)(b).26 Sentencing notes, above n 1, at [14].27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35]–[36].Disposition[31] The application for an extension of time to appeal is granted.[32] Leave to tender the s 27 report is granted.[33] The appeal is dismissed.Solicitors:Public Defence Service, Auckland for AppellantCrown Solicitor's Office, Whangārei for Respondent