MARTIN v R [2020] NZHC 712

MARTIN v R [2020] NZHC 712 [7 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-11[2020] NZHC 712BETWEEN WILLIAM ALEXANDER MARTINAppellantAND THE QUEENRespondentHearing: 1 April 2020 (teleconference)Counsel: S J Gill for AppellantJ M Irwin for RespondentJudgment: 7 April 2020JUDGMENT OF SIMON FRANCE J[1] This appeal was conducted by telephone, each participant joining from aremote location. It was recorded. The appeal was listed on the daily list and the mediainvited to attend if they wished. None did so.[2] Mr Martin appeals a sentence of three years eight months' imprisonment.1 Theappeal is of narrow compass focusing only on the amount of credit given forrehabilitative efforts together with matters identified in a report presented under s 27of the Sentencing Act 2002.Offending and Sentence[3] Mr Martin was convicted in relation to two sets of offending. The firstoccurred on 15 November 2018 and resulted in one charge of male assaults female,21 R v Martin [2020] NZDC 1855.2 Crimes Act 1961, s 194; maximum penalty of two years' imprisonment.and one of assault with intent to injure.3 During the course of an argument, Mr Martingrabbed the victim by the collar with both hands and threw her into a wall (maleassaults female). As the scuffle continued, he then grabbed her by the throat,restricting her breathing (assault with intent to injure). When the victim broke free ofhis grip around her neck, he slapped her across her face (this contributed to the maleassaults female charge). The victim suffered bruising and abrasions to her neck as aresult of the strangulation, and the trauma left her sore, dizzy and nauseous.[4] The second set of offending occurred while Mr Martin was on bail for the firstset of offending, on 25 December 2018, and resulted in the charges of causing grievousbodily harm with intent to injure,4 one charge of male assaults female,5 and wilfuldamage.6 Mr Martin went upstairs in the early hours of Christmas morning and beganan argument with the victim. He then punched her in the face twice (causing grievousbodily harm with intent to injure). As the victim tried to use her phone to call for help,he grabbed and pulled her wrist to get her phone from her, kicked her in the chest andthen, once she had stood back up, pushed her in the chest back into the wall (maleassaults female). He then left, taking her phone with him and slamming it into thestaircase bannister causing the screen to smash (wilful damage). The victim sufferedsignificant fractures to both sides of her jaw as a result, which was operated on andmultiple metal plates were inserted to reconnect her jaw. She was hospitalised for aweek and the events have caused her great stress.[5] The stress was aggravated by Mr Martin's reaction to an application by her fora protection order. A without notice interim order was made, but Mr Martin indicatedopposition to it being made permanent. This triggered the formal processes for acontested hearing which in turn saw the victim drop her application rather than facethe process. This aspect was understandably considered by the District Court as tellingagainst any claim of remorse.[6] Mr Martin, aged 46 years old at the time of the offending, has a significanthistory of offending dating back to the Youth Court, and has a number of previous3 Section 193; maximum penalty of three years' imprisonment.4 Section 188(2); maximum penalty seven years' imprisonment.5 Section 193; maximum penalty of three years' imprisonment.6 Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months' imprisonment.convictions for family and domestic violence. His most recent convictions includethree convictions for assault, convictions for assault with intent to injure, male assaultsfemale, wounding with intent to injure and five convictions for breach of protectionorder.[7] After some amendments, Mr Martin pleaded guilty to all charges and on31 January 2020 was sentenced to three years eight months' imprisonment.7 The pre-sentence report recommended imprisonment, with special conditions on release.[8] When sentencing, the Judge noted the following aggravating factors relatingto the offending: strangulation and attacks to the head; serious injury; the vulnerabilityof the victim as the assaults took place in the family home and in a family violencecontext; and the serious impact on the victim. She found there were no mitigatingfactors relevant to the offending.[9] The Judge took a starting point of two years' imprisonment in relation to thefirst set of offending, and four years' imprisonment in relation to the second set ofoffending. She adjusted by one year for totality and came to a starting point of fiveyears' imprisonment.[10] The Judge then imposed an uplift of six months to reflect that the second set ofoffending occurred while Mr Martin was on bail and the significant history of familyviolence, taking the sentence to five and a half years', or 66 months', imprisonment.In terms of mitigation, the Judge did not accept any discount for remorse, describingMr Martin's lack of remorse as "palpable in the pre-sentence report", but she gave adiscount of 10 per cent for the time he spent on EM bail while attending andcompleting the alcohol course and the s 27 factors. This brought the sentence to59 months, which was reduced to three years eight months by the guilty plea discount.A final protection order was also made.87 R v Martin, above n 1.8 Pursuant to the Sentencing Act 2002, s 123B.Appeal[11] As noted, the focus is on the 10 per cent discount for Mr Martin's efforts atrehabilitation and the various matters brought out by the s 27 report.[12] Prior to sentencing Mr Martin had been assessed as suitable for a drug andalcohol programme run by the Salvation Army. Sentencing was adjourned to allowhim to attend.9 The outcome was positive. Mr Martin was bailed to attend andcompleted the course. The course included him being released on a weekend to visithis mother and he complied with conditions and passed all drug tests. A case workerattended court at sentencing to provide further information.[13] The report advised that Mr Martin was motivated and had shown good progressin addressing the causes of his addictions. He had been responsive to suggestions.[14] Concerning the s 27 report, it explains that Mr Martin comes from abackground where he was exposed to domestic abuse and drunkenness. Extremediscipline was also a feature. Mr Martin's mother is a secondary school teacher whois a fluent Māori speaker and a teacher of the language. She is supportive of himwhilst recognising the need for him to change his behaviour and attitudes.[15] In relation to both matters, Mr Gill for the defendant emphasises aspects of therecent Court of Appeal decision, Zhang v R, where rehabilitative efforts were one ofthe matters identified as meriting proper recognition and similarly, it was recognisedthat a s 27 report which explains the personal, whānau, community and culturalbackground of an offender may provide information not only about the offender'spresent profile, but also identify causative links to historic deprivations suffered byMāori.10 Mr Gill submits that the addictions experienced by Mr Martin, his familycontext during his upbringing and his own resort to domestic violence illustrate thelinks. The Crown disputes any such link can be shown such as to merit discretesentencing recognition.9 Sentencing Act 2002, s 25(1)(d).10 Zhang v R [2019] NZCA 507 at [159].[16] A credit of around 10 per cent for successfully completing a course such as thatundertaken by Mr Martin is common, but more than that is not often allocated.11 If asimilar view were taken here, then no allocation has been made for the s 27 culturalfactors. In my view, the pattern of behaviours exhibited by Mr Martin displays clearlinks to his upbringing, particularly the years before his parents split when he wasseven years of age.12 He was then raised by his working mother who relied on whānausupport, some of whom reinforced these experiences by themselves inflicting harshdiscipline.[17] The observations in Zhang apply here, and as a package I consider that adiscount greater than 10 per cent was required. I would increase this figure by thesame again. Any greater amount would not accommodate the need to denounce theserious violent offending underlying the sentences.13Conclusion[18] The appeal is allowed.[19] The greater discount applied at the same stage as the District Court produces asentence of 53 months prior to the guilty plea credit. That in turn produces a finalsentence of three years and four months' imprisonment. I give effect to this byreducing the present sentence of 16 months on the charge of assault with intent toinjure to one of 12 months. The other sentences are unchanged._____________________Simon France JSolicitors:Steve Gill Law, Lower Hutt for AppellantCrown Law Office, Wellington for Respondent11 See for example Matthews v R [2019] NZCA 208 at [6]; Sutherland v New Zealand Police [2017]NZHC 1802, where a 15 per cent discount was given for both rehabilitative steps taken andremorse (in that case the offending was common assault for spitting into defendant's partner'sface); Kerr v R [2017] NZCA 498, where an eight per cent discount was given by the Court ofAppeal in recognition of various positive efforts made by the appellant to rehabilitate whilst incustody (the offending was aggravated robbery x2, robbery, and receiving); and Tumai v NewZealand Police [2019] NZHC 1119, where an eight per cent discount was given for the appellant'ssuccessful engagement in a wide variety of rehabilitative programmes mostly directed to angermanagement and the prevention of domestic violence (the offending was assault with a weapon,man assaults female x5, assault on a child x3, and breach of protection order x2).12 See the discussion of such linkages in R v Rakuraku [2014] NZHC 3270 at [56]-[58]; and Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 24 at [49]-[50].13 R v Patangata [2019] NZHC 744 at [44]; and R v Carr [2019] NZHC 2335 at [60].