FOGELMAN v NEW ZEALAND POLICE [2017] NZHC 1670

FOGELMAN v NEW ZEALAND POLICE [2017] NZHC 1670 [20 July 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2017-443-13, 14, 15 and 16[2017] NZHC 1670BETWEEN PETER FOGELMANAppellantAND NEW ZEALAND POLICERespondentHearing: 18 July 2017Counsel: J C Hannam for AppellantG N Milne for RespondentJudgment: 20 July 2017JUDGMENT OF THOMAS JIntroduction[1] On 17 May 2017 Mr Fogelman was sentenced to four and a half years'imprisonment on the following charges: threatening to kill (x4), wilful damage, injuring with intent to cause grievous bodily harm and aggravated assault.1[2] He appeals against sentence on the basis that it is manifestly excessive because the starting point was too high.Facts[3] The injuring, aggravated assault and one of the threatening to kill charges are the result of an incident that occurred on 14 May 2016. Mr Fogelman went to hissister's house and entered without permission. They were estranged from each other and had not seen each other for over two years. She asked him to leave but he refused. He rolled a cigarette, and then advanced on her, telling her repeatedly that1 R v Fogelman [2017] NZDC 10201.she was dead. He cornered her against a wall and hit her across the face severaltimes with the palm of his hand. He told her she was dead again, then said "here comes the big one". He then punched her with all his force and the blow brieflyrendered her unconscious. She tried to get away but fell through a glass door. She suffered significant facial injuries, a fractured jaw and, as a result of falling through the glass, several lacerations to her arm and hand.[4] A neighbour, who Mr Fogelman had not met before, came to assist the first victim. Mr Fogelman punched him in the face and kicked him in the stomach. Mr Fogelman closed the door and locked the second victim outside. The victim kicked his way back through the front door. Mr Fogelman charged at him and punched him in the face, and a short but violent struggle ensued. With the assistance of some other nearby residents, Mr Fogelman was restrained. The second victim suffered a sore head and body.[5] The other threatening to kill charges relate to a phone call Mr Fogelman had with another sister, where he threatened to kill all three of his sisters.[6] The wilful damage occurred when Mr Fogelman was in the police cells. He became enraged and broke a window.Sentence indication[7] After setting out the facts, Judge Sygrove turned to the victim impact statements. The first victim did not remember exactly what happened as her mind blanks out at the events. She had been to see a psychologist. Her concussion had lifted and her thoughts were clearer, but the concussion was exhausting and she could not work. Her work was supportive. She said she was still terrified that Mr Fogelman would come for her. The scars were still there. She suffered a number of injuries that resulted in scars and her broken jaw meant she could only eat soft minced food for six weeks and would have ongoing issues relating to her jaw. She had been abused by Mr Fogelman for 20 years, but said this was the first time she really feared for her life. She thought he was going to kill her, and is haunted by flashbacks.[8] Mr Fogelman's other sisters said his behaviour really upset them. One ofthem said she wished she had an older brother who loved and cared for them, but she does not.[9] The neighbour said that he had never experienced anything like that in his life. He cannot remember exactly what happened. He and his wife have become very paranoid and he was badly affected.[10] Judge Sygrove considered the offending fell into band two of R v Taueki.2Although there were three significant aggravating factors, none of them were serious enough to bring the offending into band three. He adopted a starting point of five years' imprisonment. He then added an uplift of six months for the assault, and a further uplift of six months for the threats to kill (noting they occurred while he was on bail for the earlier offending). He then gave a full reduction for guilty plea, which resulted in a sentence of four and a half years' imprisonment.Sentencing[11] At sentencing, the Judge imposed a sentence of four and a half years'imprisonment, as indicated.Appellant's submissions[12] The appeal is advanced principally on the basis the starting point was too high. Mr Hannam submits it is not apparent whether the Judge addressed the issue of difference in maximum penalties between s 188(1) offending,3 which was the focus on Taueki, and s 189(1) with its lower maximum penalty of 10 years. The issue was considered in Kavenga v Police where it was accepted that a reduction because of the lower maximum penalty was appropriate.42 R v Taueki [2005] 3 NZLR 372 (CA).3 Wounding, maiming, disfiguring or causing GBH with intent to cause GBH – maximum penalty:14 years' imprisonment.4 Kavenga v Police [2015] NZHC 2599.[13] The Judge found there were three aggravating factors: vulnerability of the victim, blows to the head and serious injury. He did not consider, in Mr Hannam'ssubmission, premeditation or home invasion were present sufficiently to be considered as discrete factors. Mr Hannam submits that vulnerability and blows to the head are to some extent accommodated within the factor of serious injury. Because of the crossover, they do not each carry the full weight of being an aggravating factor. This would mean there were one to two factors and it should be considered band one offending with a range of three to six years. A lower starting point of three to four years would then be available, and would accommodate any error arising from a failure to consider reduction for the lower maximum. He refers to Faulkner v R as an example of more serious offending.5[14] Mr Hannam does not dispute the uplifts. He also emphasises Mr Fogelman'sdesire to engage in restorative justice, something which was not possible in the circumstances. He says, applying the guilty plea discount, a final sentence of between two years and eight months and three years and nine months' imprisonmentresults.Respondent's submissions[15] Ms Milne accepts a reduction must be made to the starting points in the bands when sentencing for charges under s 189(1), because of the lower maximum penalty, and that the Judge did not explicitly make an adjustment. However, it is well established that such adjustment is not a strictly mathematical exercise. In any event, the Judge did turn his mind to the lower maximum penalty when setting the starting point, because he set out the Police submission to that effect. The starting point was in any case justified in all the circumstances.[16] Ms Milne notes the Judge's finding that there were three "serious aggravating factors": vulnerability, attack to the head, and serious injury. However, the Police position is that the offending involved two further factors, home invasion and premeditation. These were both considered serious aggravating factors in Taueki.65 Faulkner v R [2016] NZCA 315.6 Taueki, above n 2, at [31].Due to the presence of five aggravating factors, the offending fell in band two and the five year starting point was appropriate.[17] Starting points of five years have been adopted for similar offending under s 189(1), after an adjustment has been made for the lower maximum penalty. Ms Milne submits this case warrants a higher starting point than the four years and six months for less serious offending in R v Abbott.7 She also refers to Potae v R8and McCallum v R.9[18] Accordingly, counsel submits the end sentence of four years and six months'imprisonment was within range, regardless of how it was arrived at. It was appropriately arrived at by adopting a five year starting point, 12 month uplift and 25 per cent guilty plea discount.Analysis[19] Band one of Taueki applies to offending with two or fewer aggravating factors, and attracts a starting point in the range of three and six years' imprisonment. Band two applies when there are two or three aggravating factors, and attracts starting points of between five and ten years. While it was implicit the "three seriousaggravating features" to which the Judge referred were vulnerability, attack to the head, and serious injury, he did not discount home invasion and premeditation as being present. On my analysis he accepted the Police submission those factors were present, although at a more limited level. That would be the correct approach given Mr Fogelman entered the house without permission and refused to leave and told hissister she was "dead" before starting to hit her. Accordingly, while there may be some overlap between the other three factors, the presence (to a lesser extent) of these additional factors should also be taken into account.[20] In respect of the appropriate ranges for s 189(1) offending compared to the bands identified in Taueki, it is most helpful to look at the cases referred to by counsel, all of which involved s 189(1) offending.7 R v Abbott [2013] NZHC 62.8 Potae v R [2016] NZCA 146.9 McCallum v R [2012] NZCA 150.[21] Mr Hannam notes the case of Faulkner v R.10 Mr Faulkner went to the address of the victim, and was invited inside. He was with his wife and her friend, both sex workers. His wife informed him that the victim had propositioned her for sex. He left the address with the two women, and took them to his car, and then returned to confront the victim. He then assaulted the victim over a prolonged period, initially in his house, then in the driveway when he tried to run away. Theattack was described as "a violent attack of a frenzied nature". The victim requiredsix stitches and had abrasions to his head, neck and leg. It was accepted for sentencing purposes that there were no kicks to the head, and the head injury was a result of punches, falls, or being pinned to the ground.[22] The Court of Appeal found that three aggravating factors were present: prolonged violence, an element of premeditation, and attack to the head. A starting point of five years was adopted. The Court said that while each of the factors was not in itself the most serious, their combination justified the starting point of five years.[23] Mr Hannam appears to rely on this case primarily for the argument that home invasion was not considered as a discrete aggravating factor, and nor should it be in the present case. However, this overlooks that in Faulkner, the appellant was initially invited into the house. Overall, in my view, the offending was of similar seriousness as in the present case.[24] The respondent refers to three cases. Firstly, in R v Abbott, the 18 year oldoffender was sentenced to two years and four months' imprisonment for one chargeunder s 189(1) (and 18 months concurrently for aggravated burglary).11 The offender was angry after being kicked out of a party. He walked to a nearby address where he knew that the victim (a woman in her twenties) lived alone. When she opened the door, he raised a rock above his shoulder, intending to hit the victim over the head with it. She blocked the blow with her arm, causing the rock to fall to the ground. The offender pushed his way into the house and proceeded to punch the victim in the head a number of times. She fell to the floor and he proceeded to kick10 Faulkner, above n 5.11 R v Abbott, above n 7.her about the head. She sustained severe bruising to her forehead, a chipped tooth, a swollen and cut lip, a cut to her ear, and bruises over her arms and legs. The offending had long term emotional effects, although the physical injuries were less serious than those in the present case.[25] Kόs J held there were four aggravating factors: home invasion, vulnerability, attack to the head and use of a weapon. Use of a weapon was given less weight because using the rock was opportunistic, and it was dropped early in the assault. He described the offending as "nasty" and "cruel" but did not involve "extreme violence". He noted the need for adjustment in the bands for the lower maximumpenalty and found it fell at the upper end of band one and lower end of band two. A starting point of four years and six months was adopted.[26] I have also had regard to the cases of Potae v R12 and McCallum v R,13 both appeals to the Court of Appeal in respect of sentences for charges under s 189(1). The cases are broadly similar to the level of offending and aggravating features in this case and starting points of five years six months and five years respectively were upheld by the Court of Appeal.[27] The cases referred to by both counsel illustrate the starting point of five years was within range given the aggravating factors that were present. In my view, the end sentence was also appropriate in respect of the charge of injuring the victim with intent to cause her grievous bodily harm.[28] One aspect of the sentence with which I do take issue is the treatment of the four charges of threatening to kill. In respect of each of them the Judge imposedsentences of four and a half years' imprisonment to be served concurrently.Ms Milne accepted those sentences were outside the range in all the circumstances. In respect of the threat to kill to the victim of the violent offending at the time of the offending a sentence of 12 months' imprisonment would be appropriate. In respectof the three charges of threatening to kill, when Mr Fogelman threatened his three sisters during a telephone conversation, sentences of six months' imprisonment are12 Potae, above n 8.13 McCallum, above n 9.appropriate. For these reasons the sentences in respect of all four charges of threatening to kill are quashed and replaced with concurrent sentences of 12 months'imprisonment in the case of the offending against the main victim during the serious assault and six months in respect of the other charges.Thomas JSolicitors:Hannam and Co Lawyers Ltd, New Plymouth for AppellantCrown Solicitors' Office, New Plymouth