FOUGERE v THE CROWN [2023] NZHC 2905

FOUGERE v THE CROWN [2023] NZHC 2905 [17 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-368[2023] NZHC 2905BETWEEN MATTHEW PAUL FOUGEREAppellantAND THE CROWNRespondentHearing: 16 October 2023Appearances: M Jenkins and J Wickliffe for the appellantD Becker for the CrownJudgment: 17 October 2023JUDGMENT OF CAMPBELL J[Appeal against Sentence]This judgment was delivered by me on 17 October 2023 at 3.30 pmRegistrar/Deputy Registrar[1] Mr Fougere pleaded guilty to charges of wounding with intent to causegrievous bodily harm and possession of an offensive weapon. On 26 May 2023, JudgeJ Bergseng sentenced him to four years and six months' imprisonment.1 Mr Fougereappeals that sentence.The offending[2] Mr Fougere and his victim, Mr Ozane, lived in a hostel in New North Road,Kingsland. On the morning of 14 October 2021, Mr Ozane went to Mr Fougere'sroom. Mr Fougere's partner (and co-offender), Ms Nightingale, was already there.The three socialised for some time but after about an hour the mood changed. MsNightingale told Mr Fougere she did not trust Mr Ozane. The two of them interrogatedMr Ozane for some time.[3] Ms Nightingale happened to have a small blowtorch with her. She placed theblowtorch about one centimetre from Mr Ozane's skin and started to burn the top ofhis hand. When Mr Ozane pulled his hand away, Mr Fougere said he was to hold hishands still, otherwise he would be bashed and killed. Mr Ozane held his hands stilland Ms Nightingale used the blowtorch to burn the top of both of his hands. Mr Ozanecould hear and see his skin sizzling.[4] This occurred over a period of time. Ms Nightingale would burn Mr Ozane'shands, and then she and Mr Fougere would leave the room and talk before returningand burning Mr Ozane's hands some more. During this time, Mr Ozane was beggingMr Fougere and Ms Nightingale to stop.[5] Mr Ozane attempted to escape. He managed to run upstairs. Mr Fougere andMs Nightingale gave chase. Mr Fougere grabbed a bread knife from a kitchen bench,approached Mr Ozane and told him to "shut the fuck up, or you'll die now, come backto the room now". Mr Ozane initially complied but then made a run for the front door.Mr Fougere grabbed him and forced him back into the room.1 R v Fougere [2023] NZDC 10473.[6] Once back in the room, Mr Ozane continued to beg to be let outside. At thatpoint Mr Fougere let him out a fire exit door. Mr Ozane sprinted onto the road andinto a petrol station. Mr Ozane saw Mr Fougere behind him then ran into a nearbyrestaurant to hide.[7] Police arrived and Mr Ozane was taken to hospital. He suffered extensive deepburns to the tops of his hands and blistering to the palms of his hands.[8] The possession of a weapon charge arose 12 months later, while Mr Fougerewas on electronically monitored (EM) bail for the wounding charge. The Policeattended at Mr Fougere's address. When they spoke to Mr Fougere in his car theynoticed an axe between the handbrake and the driver's seat.District Court judgment[9] Judge Bergseng described the offending. He noted that Mr Fougere had43 convictions, beginning from 2008. The convictions were mostly drug-related.[10] The Judge referred to a pre-sentence report. This saw Mr Fougere as being athigh risk of reoffending and a medium risk of harm to others. The report writer opinedthat Mr Fougere was yet to develop insight into how his beliefs and attitudes facilitatecrime.[11] Judge Bergseng also referred to a report from Corrections. This said that MrFougere had been engaging in rehabilitation while in custody after his arrest on thepossession charge in October 2022. The report said that Mr Fougere was compliantand had maintained a positive relationship with staff and other inmates.[12] The Judge also had a report under s 27 of the Sentencing Act 2002 froma psychologist, Dr Bramhall. This referred to a traumatic experience in Mr Fougere'slife at the age of 15 which in due course led to Mr Fougere becoming a consistent userof drugs including methamphetamine. Dr Bramhall opined that Mr Fougere met thediagnosis for post-traumatic stress disorder.[13] As to a starting point, the Judge referred to the Court of Appeal's guidelinejudgment in R v Taueki.2 Counsel agreed that Mr Fougere's offending fell withinband 2 of Taueki, which had a range of between five to ten years as a starting point.The Judge noted that there were several aggravating factors of Mr Fougere'soffending. He saw the starting point as in the range of six years. However, given thatMs Nightingale had already been sentenced for her part in the offending to five yearsand ten months' imprisonment, the Judge adopted the same starting point for MrFougere. He uplifted that by two months for the charge of possession of a weapon.The overall starting point was therefore six years' imprisonment.[14] The Judge did not apply any uplift for Mr Fougere's previous convictions. Hemade a number of allowances for personal mitigating factors. The Judge accepted thatthere was a causative link between the trauma and addiction that Mr Fougere hadsuffered and his offending, and reduced the starting point by 15 per cent to allow forthis. His Honour allowed another five per cent for Mr Fougere's remorse and effortsat rehabilitation. The Judge allowed ten per cent for Mr Fougere's guilty plea.[15] The Judge said that all up there was a 25 per cent reduction, so that the endsentence was four years and six months. The judge made an arithmetical error, as thecredits that he allowed totalled 30 per cent, not 25 per cent.Grounds of appeal[16] Mr Fougere appeals his sentence on four grounds:(a) The Judge adopted a starting point that was too high.(b) The Judge did not allow a sufficient discount for the matters recordedin Dr Bramhall's report.(c) The Judge did not allow a sufficient discount for Mr Fougere's effortsat rehabilitation.2 R v Taueki [2005] 3 NZLR 372 (CA).(d) There should have been a reduction for the time that Mr Fougere spenton EM bail.[17] At the hearing, I pointed out to Mr Fougere's counsel that there was also anarithmetical error in the Judge's calculation of the various deductions from the startingpoint. Counsel adopted that as a further ground of appeal.Principles governing sentence appeals[18] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.3 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.4Was the sentence manifestly excessive?[19] Ms Jenkins, counsel for Mr Fougere, submitted that a five-year starting pointshould have been adopted for Mr Fougere. She said that Mr Fougere's culpability waslower than Ms Nightingale's. Ms Nightingale was the person who was holding theblowtorch to the victim's hands. Mr Fougere had allowed the victim to leave.[20] I did not accept that submission. While Mr Fougere did not hold the blowtorch,his physical presence and threats allowed the assault to occur and continue. AlthoughMr Fougere allowed the victim to leave via the back door, he then followed the victim.Given the range of aggravating factors that were present in the offending, a startingpoint of five years and ten months was well within range. The uplift of two monthsfor the possession of a weapon charge was also appropriate.[21] I also see no error in the 15 per cent allowance that the Judge gave forMr Fougere's background. Mr Fougere had a prosocial upbringing. He enjoyed, andcontinues to enjoy, the support of a loving family. I accept that Mr Fougere suffereda traumatic event when he was 15 and that this was one reason that he began abusing3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].4 At [36].drugs. In turn, this provides a causative link to his offending. But compared to mostof the backgrounds that courts are presented with, Mr Fougere has been provided withmany opportunities in his life. If anything, the 15 per cent allowance was generous.[22] The Judge allowed five per cent for Mr Fougere's remorse and rehabilitation.I accept that there is evidence from Dr Bramhall's report of genuine remorse byMr Fougere. However, this is already reflected to some extent in the ten per centallowance for Mr Fougere's guilty plea. As to rehabilitation, I accept that Mr Fougerehas made real efforts towards this in his recent time in custody. I consider that the fiveper cent allowed by the Judge is sufficient recognition of this.[23] As to time spent on EM bail, this was overlooked by counsel at sentencing andso was not drawn to Judge Bergseng's attention. Mr Fougere spent just over sixmonths on EM bail before his arrest on the possession of a weapon charge. Mr Becker,counsel for the Crown, submitted that no credit should be given as Mr Fougere hadreoffended while subject to EM bail. I do not accept that submission. In determiningthe appropriate credit for time spent on EM bail, the question of compliance is focusedon compliance during the time for which credit is sought. Mr Fougere's offending inOctober 2022 meant that his EM bail was revoked. But it did not retract from hiscompliance during the time that he was on EM bail. There were no apparent issuesuntil his arrest on the charge. I allow two and a half months for his six months ofcompliance.[24] The end result is that I make the same allowances as the Judge did against thesix-year starting point. However, correcting for the Judge's arithmetical error andmaking an allowance for EM bail leads to an end sentence of four years rather thanfour years and six months. On this basis, I consider that there was both an error in theJudge's sentence and that the sentence was manifestly excessive.Result[25] I allow Mr Fougere's appeal. I quash the Judge's sentence of four years andsix months' imprisonment and substitute a sentence of four years' imprisonment.______________________Campbell J