SOUD v R [2020] NZCA 149

SOUD v R [2020] NZCA 149 [7 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA676/2019[2020] NZCA 149BETWEEN SAMMY AYOUN SOUDAppellantAND THE QUEENRespondentCourt: French, Mander and Dunningham JJCounsel: M J Dyhrberg QC for AppellantM N Zarifeh and S R D D Bicknell Young for RespondentJudgment:(On the papers)7 May 2020 at 11 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of two and a half years' imprisonment imposed by theDistrict Court is quashed and substituted with a sentence of two years andone month's imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Following guilty pleas in the District Court, Mr Soud was convicted of a chargeof wounding with intent to injure and a representative charge of wounding withreckless disregard. He was sentenced by Judge Phillips to a term of imprisonment oftwo and a half years.1[2] Mr Soud now appeals his sentence. His counsel Ms Dyhrberg QC contendsthe sentence was manifestly excessive because of errors made by the Judge in fixingand adjusting the starting point.[3] She urges the Court to quash the sentence and substitute a short term ofimprisonment which having regard to time already spent in custody ought then to becommuted to a nominal term of community or home detention.[4] By consent the appeal was dealt with on the papers.Facts of the offending[5] The offending took place in early August 2018 at a Dunedin bar whereMr Soud and the three victims (Mr Jones, Mr Raymond and Ms Richards) weredrinking. Mr Soud and the victims were all university students. The victims did notknow Mr Soud although they had mutual acquaintances.[6] There was an altercation involving pushing and shoving between Mr Soud anda friend of Mr Jones and Mr Raymond. The two men were pulled apart by otherpatrons.[7] A few seconds later, Mr Soud went over to Mr Jones and Mr Raymond.Mr Jones said to Mr Soud "are you all good?" Mr Soud replied aggressively,prompting Mr Jones to put up his hands in a submissive gesture and to back away.Despite this, Mr Soud raised his right hand and forcefully smashed his drinking glassinto the left side of Mr Jones's head near his temple causing the glass to smash.Mr Soud then threw the remainder of the broken glass into the direction of others inMr Jones's group. The glass was thrown at head height and in close range. It hitMr Raymond in the face close to his eye. It then bounced off his face and a piece ofglass hit Ms Richards in the chin causing a small but deep wound.1 R v Soud [2019] NZDC 26349.[8] The three victims were left shocked and shaken. All required medicaltreatment and all have been left with permanent scarring on their face. In addition totheir physical injuries, all also reported ongoing anxiety.[9] For Mr Jones the stress caused by the incident and the protracted courtprocesses impacted adversely on his studies and enjoyment of his first year ofuniversity life. He sustained deep cuts to his left temple area requiring six stitches.[10] Mr Raymond required 20 stitches to his face. He also underwent counsellingbecause of the effect of the offending on his emotional well-being. Initially,it impacted his social interactions as he became anxious and worried about what otherpeople thought of him because of his appearance. He then started to experiencesymptoms of post-traumatic stress disorder, becoming easily frightened and jumpywhen something unexpected happened and having flashbacks of the incident. Like MrJones, his studies were disrupted.[11] Ms Richards had four stitches to her chin after a very painful procedureinvolving local anaesthetic delivered directly into the gash. She has been left witha jagged scar on her chin. For some time, she felt trepidation going out in large groups.[12] When interviewed by the police, Mr Soud said he was intoxicated and couldnot remember anything other than the initial altercation with the friend of Mr Jonesand Mr Raymond and throwing his drink in a disrespectful manner.[13] Mr Soud was originally charged with five charges, comprising two charges ofwounding with intent (Messrs Jones and Raymond), one charge of wounding withreckless disregard (Ms Richards), one charge of assault and one charge of assault usinga weapon. The assaults related to two other members of the group in whose directionthe glass was flung. Mr Soud pleaded not guilty to all charges.[14] Mr Soud spent 16 months on bail awaiting trial. There was a curfew for sevenmonths of that time from 8pm to 7am but there were variations suspendingthe operation of the curfew if he was in the company of his parents or at work. Thecurfew was removed to enable Mr Soud to return to Auckland and continue his studies.[15] In submissions, the Crown state that Mr Soud breached his bail on more thanone occasion. One of those breaches involved him travelling to a party in Queenstownwhile on curfew and then lying about it to police, falsely claiming he had been withhis parents.[16] On the eve of the trial, defence counsel (not Ms Dyhrberg) applied for an orderexcluding visual identification evidence which the Crown intended to adduce.The Judge decided to deal with the issue by way of a voir dire on the first days of trial.The jury was empanelled and then sent away while four Crown witnesses includingMr Jones and Mr Raymond gave evidence and were cross-examined.[17] At the conclusion of the voir dire, counsel conferred and an agreement wasreached whereby the Crown agreed to offer no evidence in relation to the assaultcharges and to aggregate charges two and three into a single representative charge ofwounding with reckless disregard. Mr Soud then pleaded guilty to the representativecharge and the charge of wounding with intent to injure.[18] Although the guilty pleas were entered in August 2019, sentencing wasdeferred and bail continued until December 2019 on Mr Soud's request to enable himto complete his studies.[19] Mr Soud was a first offender. Prior to sentencing, he completed an alcohol anddrug course, attended a course of psychotherapy to explore issues of angermanagement, participated in restorative justice with one of the victims and madean offer of reparation. He also obtained letters of support from several people tothe effect this incident was out of character.Sentencing in the District Court[20] The Judge took as the lead offence the charge of wounding with intent to injure.Relying on this Court's guideline decision in Nuku v R,2 he adopted a starting point ofthree and a half years in relation to that offence and then uplifted it by another12 months on account of the representative wounding with reckless disregard charge.32 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.3 R v Soud, above n 1, at [34].[21] Having arrived at a global starting point of four and a half years' imprisonment,the Judge turned to personal mitigating factors. They led to a series of discountsamounting in total to a reduction of two years, representing approximately 45 per centof the starting point. The detail of the individual discounts, some of which wereexpressed in percentage terms and others in terms of months, was as follows:4(a) 20 per cent for Mr Soud's youth and previous good character(approximately 11 months);(b) five per cent for remorse and participation in a restorative justiceprocess (approximately three months);(c) five per cent for time spent on bail (approximately three months);(d) three months for emotional harm payments (approximately five percent);(e) two months for the guilty plea (approximately four per cent); and(f) three months for the fact it would be Mr Soud's first experience ofprison (approximately five per cent).[22] As regards the discount for an emotional harm payment, it appears the Judgecalled for a reparation report. The report noted that Mr Soud was unemployed andthat if reparation were ordered, it would be his parents who paid it. Subsequently,Mr Soud's lawyer wrote a letter to the prosecution advising that Mr Soud was willingto offer each of the complainants a payment of $1,500 which if accepted could be paidprior to sentencing. The Judge did ultimately make a reparation order but only forwhat he considered a token amount ($2,750) to be paid within six months of Mr Soud'srelease from prison.54 At [36]–[38].5 At [39]. Mr Jones was to receive $1,000, Mr Raymond $1,000 and Ms Richards $750.[23] The application of the discounts resulted in the end sentence of two and a halfyears' imprisonment.Arguments on appeal[24] As mentioned, the grounds of appeal challenge both the Judge's starting pointand the discounts he applied in reduction of the starting point.[25] Ms Dyhrberg submits that in adopting a starting point of three and a half years'imprisonment for the lead offence, the Judge misapplied Nuku and "radically eclipsedthe bounds of discretion" having regard to comparator cases such as Rafiq v R,Sheppard v R, Ormsby v Police, Frelih v Police, Hetherington v Police, Williams vPolice, Kershaw v Police, R v Ngarangione, Grimshaw-Jones v R, Hannay v Police,Hepi v R, Swan v Police, R v Davis, Hurinui v R, Moase v Police, Leatherby v Policeand Waru v Police.6[26] In Ms Dyhrberg's submission, correctly analysed the offending fell withinband two of Nuku, not band three as held by the Judge, and should have been assigneda starting point of two years' imprisonment. Ms Dyhrberg further contendsthe one year uplift for the secondary offence was also excessive, the Judge failing tohave sufficient regard to totality. The uplift, she argues, should have been no morethan six months. That would have meant a starting point of two and a half years, asopposed to four and a half years.[27] The Judge's error in setting too high a starting point was then, it is said,compounded by his failure to give Mr Soud sufficient credit for personal mitigatingfactors. In particular, there was no recognition of the efforts Mr Soud had madetowards rehabilitation (which warranted a 15 per cent discount) while the discounts6 Rafiq v R [2017] NZCA 220; Sheppard v R [2013] NZCA 639; Ormsby v Police [2014] NZCA 73;Frelih v Police [2014] NZHC 2217; Hetherington v Police [2015] NZHC 1829; Williams v Police[2017] NZHC 1299; Kershaw v Police [2019] NZHC 379; R v Ngarangione HC Invercargill CRI-2005-225-115, 20 April 2007; Grimshaw-Jones v R [2010] NZCA 490; Hannay v Police [2014]NZHC 2015; Hepi v R [2014] NZHC 3180; Swan v Police [2014] NZHC 69; R v Davis [2015]NZHC 2289; Hurinui v R [2014] NZCA 290; Moase v Police HC Whanganui CRI-2004-483-13,8 September 2004; Leatherby v Police [2008] NZHC 2567; and Waru v Police HC Auckland CRI-2005-404-393, 6 December 2006. Of these cases, the following cases are factually analogous:Hetherington v Police, Williams v Police, R v Ngarangione, Hannay v Police, Hepi v R, Moase vPolice and Waru v Police.that were given for youth, the guilty pleas and remorse accompanied by engagementin restorative justice were all inadequate. Promptings of mercy should also have beenin play.[28] As regards youth, Ms Dyhrberg submits that warranted a 20 per centadjustment by itself. She argues that youth was a particularly relevant factor in thiscase, not only to mark neurological immaturity causing impulsive behaviour, but alsobecause the offending arose from social pressure and a culture of pathological drinkingat university to which Mr Soud had not previously been exposed.[29] Mr Soud's remorse accompanied by engagement in a restorative justiceprocess merited a discount of 15 per cent as opposed to the discount of 5 per cent givenby the Judge. So too did the guilty pleas bearing in mind Mr Soud's predicament,given he had no working memory of the incident, and the fact he pleaded guiltyimmediately after the charges were amended. There had been an earlier plea offer butit had only involved the withdrawal of the assault charges.[30] Had an appropriate starting point and discounts been given, the end sentencewould have meant Mr Soud was eligible for home detention or community detentionwhich was the sentence recommended by the pre-sentence report.Our view[31] Nuku v R is the guideline decision on sentencing for violent offendinginvolving an intent to injure. The decision sets out three sentencing bands with a rangeof starting points for each. Which band any particular case falls into will depend onthe number and nature of the aggravating factors present. The relevant culpabilityassessment factors include extreme violence, premeditation, serious injury, use ofweapons, attacking the head and vulnerability of victim.[32] Under band two of Nuku v R, starting points of up to three years' imprisonmentwill be appropriate where three or fewer of the aggravating features are present.Band three which has a range of starting points from two years to seven years'imprisonment applies where three or more of the aggravating factors are present anda combination of those factors is particularly serious.[33] In our view, it was open to the Judge to find that the case fell within band three.The violence was unprovoked, a weapon (the glass) was used, the head was attacked,the injury sustained was significant, and there was vulnerability in the sense that it wasa surprise attack with no opportunity to take defensive action. This was seriousoffending.[34] As to where it should be placed within band three, we do however agree withMs Dyhrberg that a starting point of three and a half years' imprisonment does notappear to be consistent with many of the comparator cases. For that reason, we haveconcluded that the starting point adopted by the Judge was too high and thata three year starting point would have been more appropriate with an uplift of ninemonths for the representative charge taking into account totality.[35] We therefore accept there has been error in fixing the starting point.[36] In relation to the adequacy of the discounts, we acknowledge Mr Soud's effortsat rehabilitation, but contrary to the submissions made by Ms Dyhrberg we considerthe discounts given by the Judge were if anything generous. In particular, we considerMr Soud was fortunate to receive any discount for the fact it was his first prisonsentence and for the guilty pleas. The pleas were very late, two of the victims hadbeen required to give evidence and the Crown case was strong.[37] As regards youth, at the time of the offending Mr Soud was about to turn 21and at the upper end of eligibility for a significant youth discount. Further, he was inhis third year of studies which tends to undermine the claim that he was led into a newculture of drinking. As it was, the Judge recognised youth by giving a discount of20 per cent albeit coupled with previous good character.[38] As for remorse, we agree with the Crown submission that there was reason tobe sceptical about the genuineness of Mr Soud's remorse. In addition to the latenessof his guilty plea, his affirmation primarily focused on the effects the offending hadhad on himself and his family, while according to the one victim who attendedthe restorative justice process, it took Mr Soud at least twenty minutes to say the word"sorry" and even then only at the prompting of the facilitator.[39] In any event, the discount given for remorse including participation ina restorative justice process was 10 per cent which we consider appropriate.[40] We therefore adopt the Judge's total adjustment of 45 per cent and apply it towhat we have determined was the appropriate starting point of three years and ninemonths' imprisonment. That results in an end sentence of two years and one month'simprisonment.Outcome[41] The appeal is allowed.[42] The sentence of two and a half years' imprisonment imposed bythe District Court is quashed and substituted with a sentence of two years and onemonth's imprisonment.Solicitors:Crown Solicitor, Christchurch for Respondent