GOTZ v R [2019] NZCA 99

GOTZ v R [2019] NZCA 99 [9 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA603/2018[2019] NZCA 99BETWEEN TUATAHI TE PARAU GOTZAppellantAND THE QUEENRespondentHearing: 27 February 2019Court: French, Dobson and Brewer JJCounsel: R W Ord for AppellantP D Marshall for RespondentJudgment: 9 April 2019 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Gotz was found guilty by a jury on one charge of burglary,1 and one chargeof assault with intent to injure.2 Judge D C Ruth sentenced him to three years andsix months' imprisonment on the burglary charge and six months concurrently on the1 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.2 Section 193; maximum penalty three years' imprisonment.assault with intent to injure charge.3 Mr Gotz now appeals his sentence as beingmanifestly excessive.[2] We must allow the appeal if satisfied that, for any reason, there is an error inthe sentence imposed on Mr Gotz such that a different sentence should be imposed.4Background[3] Mr Gotz and the complainant occupied rooms in a residential complex knownas the Franklyn Village. Something occurred which made Mr Gotz hostile tothe complainant. Security video footage showed Mr Gotz go to the door ofthe complainant's room at about 10:30 am, open the door and look in.The complainant was asleep. Mr Gotz closed the door and went away for a short timebefore returning. He went into the room and attacked the sleeping complainant.He struck the complainant a number of times, including to the head. The assault leftvisible injuries to the complainant's face, the right-hand side of his head and the backof his head. However, they were not described as serious.[4] Judge Ruth took the charge of burglary as the lead charge. He adopteda starting point of three years' imprisonment.5 The Judge imposed an uplift ofeight months' imprisonment to take account of Mr Gotz's criminal history and becausethe offending occurred while Mr Gotz was subject to release conditions. The Judgethen reduced the starting point by two months to take account of the period of22 weeks spent by Mr Gotz on electronically monitored bail.6 The Judge refused tofurther reduce the sentence to take account of Mr Gotz's mental health.7The appeal[5] Mr Gotz contends the sentence is manifestly excessive because:(a) The Judge adopted too high a starting point; and3 R v Gotz [2018] NZDC 20256.4 Criminal Procedure Act 2011, s 250(2).5 R v Gotz, above n 3, at [22].6 At [23].7 At [20].(b) the Judge should have given a discount for Mr Gotz's mental healthissues.[6] The gravamen of the submission on starting point is this was not a burglarymotivated by an intention to steal. Mr Gotz was angry with the complainant andentered his room to attack him. The attack consisted of a flurry of blows which leftbruising, but which did not inflict serious injury. It is submitted the burglary chargeartificially inflated the criminality of an incident which was essentially an assault.[7] Mr Ord for Mr Gotz analysed a number of cases, both in the High Court andin this Court, and submits:• In this case the offender entered to assault. He is either guilty of assaultwith the aggravating feature of home invasion or he is guilty of burglaryin order to assault, in which case it is hard to apply older precedents likeSenior, with its sprees, repeats and first offender criteria.• The appellant is not saying that the burglary charge cannot be laid.What is in issue is the burglary being the lead offence at sentencingwhen both the intention and substance of the harm was the assault.[8] Mr Ord's submission on the mental health issue is that mental health reportsfrom 2014 justify a discrete reduction of the starting point.[9] The Crown submits the starting point of three years' imprisonment wasavailable to the Judge given the aggravating features of the offending. The mostsignificant aggravating feature is that the attack constituted a form of home invasion.8It is true the complainant occupied a room in a residential complex. This Court,however, in Pohutuhutu v R, confirmed that where a person rents a room in a house,invading that person's room is no less serious than invading the house as a whole.9This reflects the "importance of recognising the sanctity of the space invaded andthe effect such invasion has on the community as a whole".108 Sentencing Act 2002, s 9(1)(b).9 Pohutuhutu v R [2017] NZCA 501 at [64].10 At [63].[10] The Crown submits there was also an element of premeditation. Mr Gotzlooked into the room and saw the complainant was asleep. He then left, thought aboutit, and returned to make his assault.[11] The vulnerability of the complainant is the third aggravating feature. He wasasleep in his bed and unable to defend himself. Mr Gotz attacked a sleeping person,striking multiple blows to the complainant's head.[12] Mr Marshall for the Crown referred to two decisions of this Court. The first,S (CA115/2013) v R,11 involved the appellant entering a motel unit in which hisestranged partner and her friend were staying. He assaulted both women, punchingand kicking them, and dragged his partner from the unit. He fled when the occupierof a neighbouring unit intervened. The appellant was convicted at trial of burglary,assault with intent to injure, male assaults female and theft. The starting point adoptedwas three-and-a-half years' imprisonment. This Court confirmed the sentence was"well within the available range".12[13] In Samiu v R,13 the appellant and a co-offender went to the complainant's housewith the purpose of assaulting him. They kicked open the door, rushed inside andassaulted the complainant with repeated kicks and punches to his head.The complainant was left with bruising and grazing but did not require medicalattention. The appellant was charged with burglary and assault with intent to injure.This Court held the appropriate starting point was three years' imprisonment.14[14] As to a discount for mental health issues, the Judge had before him two reportsfrom psychiatrists, although he mentioned only one. The first report, fromDr Richard Tranter, was written in February 2014. Dr Tranter considered there wasclear evidence Mr Gotz had a borderline intellectual disability as well as borderlinepersonality traits, antisocial personality traits and a lack of empathy towards others.Dr Tranter concluded Mr Gotz posed a particular risk of further violence towardsothers, "related to his poor level of emotional regulation and poor interpersonal skills".11 S (CA115/2013) v R [2014] NZCA 84.12 At [57].13 Samiu v R [2007] NZCA 419.14 At [12].[15] Dr Huw Thomas assessed Mr Gotz in September 2014. He consideredMr Gotz displayed antisocial personality traits, but he did not have any symptoms ofmental illness and did not require psychiatric treatment.[16] Mr Marshall submits these reports do not establish sufficient connection withthe offending to justify a reduction in the starting point.Analysis[17] In our view, contrary to Mr Ord's submission, it was appropriate to chargeMr Gotz with burglary as well as with assault with intent to injure. The two chargesproperly address the criminality of Mr Gotz's offending which was to unlawfully enterthe complainant's private living environment and then attack him while he was asleepin his own bed. The burglary charge does not "ratchet up" the sentence for the assault.It addresses a distinct and serious component of the offending.[18] We agree with Mr Marshall that Mr Gotz's offending is broadly similar to thatin S (CA115/2013) v R and Samiu v R. Both of those cases also involved brief homeinvasion burglaries for the purpose of attacking an occupant or occupants and withthe complainants suffering no serious physical injuries. The culpability of the burglaryis to be assessed against the violation of the sanctity of the complainant's home forthe purpose of subjecting the complainant to a violent attack. The seriousness ofthe assault with intent to injure is to be assessed by reference to the premeditation ofthe attack, the vulnerability of the complainant, the targeting of the head and the extentof the injuries suffered.[19] We do not find the Judge made an error in setting a starting point of three years'imprisonment.[20] Likewise, we do not find error in the Judge refusing to discount the startingpoint by reason of Mr Gotz's mental health difficulties. That he has antisocialpersonality traits is apparent from the reports of Dr Tranter and Dr Thomas. That isnot uncommon with violent offenders. However, mental illness or mental impairmentis generally relevant to sentencing by way of mitigation where:15(a) it is causative of the offending;16 or(b) it may render less appropriate or more subjectively punitive a sentenceof imprisonment.17[21] This Court, in E (CA689/2010) v R, commented that mental illness or mentalimpairment may affect the risk of reoffending. This in turn may direct attention toissues of personal deterrence or public protection.18 We note that the reports,considered against Mr Gotz's record of criminal violence, could have been relied onby the Judge in this way.[22] There is no indication in the two mental health reports (which significantlypredated the offending) that Mr Gotz's mental state was causatively linked tothe particular offending or that imprisonment is likely to be especially punitive forhim.[23] We note Mr Gotz does not criticise the Judge's increase in the starting point byeight months to take account of his criminal history and the fact he offended whilesubject to release conditions. That is appropriate. The uplift represents 22 per cent ofthe starting point and given Mr Gotz's extensive relevant criminal history it is clearlywithin the available range.19[24] Finally, Mr Gotz was fortunate to have his term of imprisonment reduced bytwo months to account for the five months he spent on electronically monitored bail.Mr Gotz breached his conditions of bail four times, culminating in him cutting off hismonitoring bracelet and absconding for around 10 days. It was open to the Judge notto accord any discount.15 E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68].16 Sentencing Act, ss 8(a) and 9(2)(e).17 Section 8(h).18 E (CA689/2010) v R, above n 15, at [69].19 See Drewett v R [2007] NZCA 48; Lavea v R [2014] NZCA 192; and Waterworth v R [2012]NZCA 58.Result[25] Taking all circumstances into account, we are satisfied the sentence ofthree years six months' imprisonment was within the range available to the Judge.There is no error. The appeal is dismissed.Solicitors:Rob Ord, Nelson for AppellantCrown Law, Wellington for Respondent