ROWLES v R [2016] NZCA 208

ROWLES v R [2016] NZCA 208 [18 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA596/2015[2016] NZCA 208BETWEEN LEON TERENCE ROWLESAppellantAND THE QUEENRespondentHearing: 4 May 2016Court: Kós, Courtney and Gilbert JJCounsel: M A Stevens for AppellantS K Barr for RespondentJudgment: 18 May 2016 at 10.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of eight years' imprisonment is quashed and substituted with a sentence of seven years one month's imprisonment.C The minimum period of imprisonment of four years is quashed andsubstituted with a minimum period of three years six months'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] The appellant, Leon Rowles pleaded guilty in the High Court at Invercargill to one count of causing grievous bodily harm with intent.1 Mander J sentenced himon 26 August 2015 to eight years' imprisonment with a minimum period of1 Crimes Act 1961 s 188(1).imprisonment of four years and required him to pay reparation of $1,000.2Mr Rowles appeals his sentence. He says that the sentencing Judge erred in:(a) taking too high a starting point;(b) allowing too small a discount for personal mitigating features; and(c) allowing too small a discount for the guilty plea.[2] The Crown responds that the starting point and discounts were all within the available range and that the end sentence was not manifestly excessive.The offending[3] There is no dispute over the nature of the offending because it was captured on CCTV footage. Just after 3 am on 9 May 2015 Mr Rowles and an associate went into a convenience store in Wanaka. They attacked another man who was ordering food. The unprovoked attack took four and a half minutes. Between them Mr Rowles and his co-defendant inflicted 80 blows on the victim's head and body.[4] Mr Rowles participated in the attack by punching and kicking the victim, holding him around the arms and shoulders while his co-defendant punched thevictim's face and head, punching and elbow-striking the victim while he was, in turn, being held by the co-defendant, ushering another customer out of the shop and checking the street outside, kicking and punching the victim as the co-defendantdragged him to the rear of the shop, stomping on the victim's stomach and striking the victim's head. For a period of over one and a half minutes, while the victim waslying unconscious, Mr Rowles and his co-defendant continued to stomp on his head and face. Finally, the attack ended with Mr Rowles pulling the co-defendant away but, even then, Mr Rowles delivered further final kicks to the unconscious man.[5] The effect on the victim has been devastating. He suffered a subdural hematoma and was in a coma for 12 days and in the critical care unit for 24 days. He suffers from profound long-term effects of his brain injury and has had to learn to2 R v Rowles [2015] NZHC 2042.walk, speak, eat, shower and toilet again. He struggles to walk properly and converse with others. He cannot look after his young children. Although the victim has made surprising progress his long-term prognosis remains uncertain.Sentencing in the High Court[6] Mander J accepted that the co-defendant was the more frenzied of the two during the attack but also found that Mr Rowles had fully participated in the violence throughout and did not consider him less involved or that his participation could be described as that of a secondary party; he deliberately chose to become involved and stayed involved throughout the attack.[7] The aggravating factors of the offending were the extreme level of violence, the grave and life threatening injuries inflicted on the victim, the fact that much of the attack focused on the victim's head, that there were two attackers, with the victimoutnumbered and alone and the particular vulnerability of the victim once he was lying on the ground unconscious and unable to defend himself while the attack continued.[8] The Judge was alert to the risk of overlap in these various factors and the need to ensure that there was no double-counting in reaching an appropriate starting point. However, he considered the factors placed the offending in the upper range of violent offending of that type, bringing it within the lower to middle of band 3 inR v Taueki.3 In fixing the starting point Mander J considered a number of casesreferred to by Mr Rowles' counsel.4 He took a starting point of ten and a half years.[9] In considering mitigating factors the Judge referred to Mr Rowles' personalcircumstances which were outlined in a report by psychiatrist, Dr Barry-Walsh. His background featured a number of dysfunctional aspects including being diagnosed with ADHD as a child and demonstrating serious behavioural difficulties, his father's serious mental illness and violence, his mother's alcoholism, unresolved grief3 R v Taueki [2005] 3 NZLR 372 (CA).4 Peng v R [2015] NZCA 45; Lambert v R [2015] NZHC 159; August v R [2011] NZCA 91;R v Stewart CA21/06, 31 August 2006; R v Connelly [2008] NZCA 550; Kara v R [2013] NZCA 527; R v Komene [2013] NZHC 1844; Hemaloto v R [2014] NZCA 335; Haimona v R [2011] NZCA 375; Geros v R [2011] NZCA 122; R v Tau'atevalu [2014] NZHC 2770.relating to the death of two young half siblings and his (no doubt resultant) abuse of cannabis and methamphetamine. However, the Judge saw nothing that bore on the offending such as would allow much weight to be placed on it in sentencing.[10] The Judge referred to the references provided by friends and family members suggesting that the offending was completely out of character for Mr Rowles.However, the Judge also referred to Mr Rowles' previous drug-related convictions. He noted the connection between drug taking and the offending and declined to give any credit for previous good character.[11] However, the Judge accepted that Mr Rowles was genuinely remorseful and his remorse warranted a discount in addition to that available for his guilty plea. Herecognized Mr Rowles' offer to participate in restorative justice, his offer to pay reparation of $1,000 (which the victim's family had accepted) and the letter he hadwritten to the victim's family. In recognition of these factors and Mr Rowles'personal circumstances (to the extent possible) the Judge allowed a reduction of six months from the starting point.[12] Finally, the Judge allowed a discount for the early guilty plea but only at 20 per cent on the basis that, given the overwhelming nature of the Crown case, there was no defence to the charge.[13] This led to a sentence of eight years' imprisonment. The Judge imposed aminimum period of 50 per cent.The starting point[14] The offending in this case was very serious. In terms of comparable cases it is similar to Tuau v R, in which the starting point was 12 years, though the injuries in that case were somewhat worse than in the present.5 It is closer to Haimona v R in terms of both offending and the resultant injuries in which a starting point of nine5 Tuau v R [2013] NZCA 623.years was taken.6 However, it is worse than the offending in R v Connolly andR v Tau'atevalu in which starting points of nine years were also taken.7[15] We consider that, although high, a starting point of ten and a half years was nevertheless within the range available to the Judge. Ms Stevens, responsibly, did not press this point.Discounts for mitigating factors[16] The discount of six months that the Judge allowed for both remorse and personal factors amounted to 4.8 per cent, though it can be assumed that the discountwas primarily directed towards Mr Rowles' remorse. Ms Stevens argued thatMr Rowles' remorse ought to have attracted a discount of 10 per cent in itself andthat a discount of a further five per cent ought to have been allowed in recognition of his personal factors. She submitted, further, that the full discount of 25 per cent should have been allowed for the guilty plea.[17] Apart from his guilty plea, Mr Rowles' remorse is the factor that most clearlywarranted a specific discount. He was charged on 9 May 2015. In a letter dated 20 June 2015 and addressed to the victim's family Mr Rowles expressed his deepestapologies for his part in the attack, his regret and his hope that the victim would make a full recovery. The Judge did, and was entitled to, accept this letter as genuine. Mr Rowles also offered to participate in restorative justice, though thevictim's family declined that offer. Finally, Mr Rowles came to court for sentencing with $1,000 in cash in offer of reparation, which was accepted. Ms Stevens advised that this was money he had saved following the offending for the purposes of offering it as reparation. At the time, Mr Rowles worked in a recycling plant and his partner was expecting a child.[18] We accept that these steps, particularly the money, represented a significanteffort on Mr Rowles' part to show his remorse in a tangible way. However the Judgeallowed only global discount of 4.8 per cent for both remorse and personal factors.6 Haimona v R, above n 4.7 R v Connolly, above n 4; R v Tau'atevalu, above n 4.In the circumstances we consider that this discount was not adequate to reflect even the remorse alone. A discount of eight per cent for remorse alone would have been appropriate and consistent with the range reflected in recent similar cases.8[19] We turn then to Mr Rowles' personal circumstances which Ms Stevens says would justify an additional five per cent discount. The first notable fact is that this offending was completely out of character for Mr Rowles. Mr Rowles produced more than 20 references from family and friends and from his employer, all of whom described him as a gentle man who had never exhibited violent tendencies.[20] These assertions are supported by Mr Rowles' criminal record, which is remarkably short for a man of his age and background. He was 34 years old at the time of the offending and his entire criminal history consisted of three cannabis-related offences in November 2012 for which he served six months' home detention, and a conviction for driving while suspended in 2004, for which he was disqualified for six months. Given the circumstances of his childhood and his own personal difficulties, this is a most unusual history.[21] Ms Stevens advanced the unresolved grief and emotional impact on Mr Rowles of the tragic death of his two young half-siblings in 2007, together with the many problems stemming from his childhood experiences, as causally connected with the offending. We decline to go that far. The immediate cause of Mr Rowles'offending was mixing drugs and alcohol. The Judge was right not to treat him as a first offender for this reason. Nevertheless, we consider that some recognition should have been given for the fact that, prior to this offending, Mr Rowles had overcome very adverse personal circumstances and, in particular, had avoided violence of any kind in his life. We consider that a discount of two per cent would be appropriate to recognize these factors.[22] The total discount for personal factors and remorse in addition to that shown by the guilty plea should therefore be 10 per cent.8 See for instance Clark v R [2013] NZCA 63; Watene v R [2014] NZCA 381; Poi v R [2015] NZCA 300; Kavenga v Police [2015] NZHC 2599.[23] Finally, Ms Stevens submitted that the 20 per cent discount given for the guilty plea was inadequate and the full 25 per cent that is available should have been given. The reason the Judge gave was the fact that the case against Mr Rowles was overwhelming. Mr Barr, for the Crown, submitted that Mr Rowles had not, in fact, pleaded at the earliest possible stage and instead waited until a charge of attempted murder laid after the charge of causing grievous bodily harm with intent had been resolved. We do not accept that. It is clear that Mr Rowles had indicated unequivocally at a very early stage that he would take responsibility for his offending. We take note of the fact that the letter to the victim's familyacknowledging his actions was written approximately six weeks after he was charged.[24] Nor do we accept the Judge's reason for not allowing the full 25 per cent. Itis true that the case against Mr Rowles was overwhelming. But even in the face of an overwhelming case, there is benefit to the State and to the victim and his family ina guilty plea. It is notable that Mr Rowles' co-offender, who is still facing a charge of attempted murder, has indicated his intention to defend the case at trial.[25] This leads to an end sentence of seven years one month's imprisonment. Theminimum period will remain 50 per cent of the end sentence, i.e. three years and sixmonths' imprisonment.Result[26] The appeal is allowed.[27] The sentence of eight years' imprisonment is quashed and substituted with a sentence of seven years one month's imprisonment. The minimum period ofimprisonment of four years is quashed and substituted with a minimum period of three years six months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent