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High Court of New Zealand Decisions |
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IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
CRI-2007-412-000019
LEON JAMES GEDDES
Appellant
v
POLICE
Respondent
Hearing:
9 August 2007
Appearances: T Cadogan for Appellant
R Smith for Respondent
Judgment: 9 August 2007
ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN
The appeal is allowed to the extent that the sentence of 15 months'
imprisonment
on the injuring with intent is reduced to 12 months'
imprisonment.
REASONS
[1] Leon
James Geddes appeals against an effective sentence of 23 months'
imprisonment imposed on him in the Alexandra District Court for
a number of
offences. Firstly he was charged with being in possession of a firearm on 24 October
2006, for which he was sentenced
to one month's imprisonment. Secondly, male
GEDDES V POLICE HC DUN CRI-2007-412-000019 9 August 2007
assaults female on 20 November
2006, for which he was sentenced to four months'
imprisonment. Thirdly and fourthly, two breaches of protection orders. Fifthly,
a
further male assaults female, and finally a charge of assault with intent to injure.
[2] The first male assaults female occurred
in November 2006, the second in
March 2007. He was bailed on the first, yet on 7 January 2007, while in an
intoxicated state
at the Ancient Briton Hotel in Naseby, gratuitously and without
provocation assaulted a patron of the hotel from Auckland, whom he
punched
heavily five times in the head, causing cuts and grazing. Notwithstanding this
occurred on bail, he was bailed yet
again and offended in the second way of male
assault s female.
[3] The appeal has been brought by Mr Cadogan on the basis of
a careful
consideration of the individual offences, although in the context of an appeal it is this
Court's obligation to stand back
and ascertain whether the effect of a sentence
imposed overall can be said to be manifestly excessive. In relation to the assault
with intent to injure Mr Cadogan has carefully analysed the decision in R v Taueki
[2005] 3 NZLR 372 (CA) and suggested that few
of the factors mentioned by that
Court as contributing to the seriousness of the offending were present.
[4] Taueki has led
to submissions of a mathematical sort, and also to District
Court decisions of a mathematical sort by simply counting up the number
of those
aggravat ing features that are present. That is not the exercise, as the Court of Appeal
has since said. They are simply
factors to be taken into account in determining the
overall culpability of an offender.
[5] Mr Cadogan has also referred to
a number of other appellate and High Court
decisio ns which suggest that the injuries in this case do not warrant the sentence
ult
imately imposed by the Judge. The cases he has referred to were for worse
offending in terms of violence, and led to similar or lesser
sentences. In relation to
the male assaults female charges he has submitted that both of them were relatively
minor. The first involved
a slap to the face (although I note in front of young
children), the second a punch to the arm. He said further the victim has expressed
the view that imprisonment is not the right option, and that in fact some form of
rehabilitat ion should be undertaken to deal
with Mr Geddes' alcohol problem.
[6] It is further submitted that on the totality basis the sentence imposed is too
great; that
the Judge wrongly used cumulative sentences when concurrent were
appropriate; and that the Judge failed to take into account as a
mitigating factor that
Mr Geddes made offers to make amends, and wrote a letter of apology to the victim.
[7] Finally, in the
written submissions it was argued that this was a case where
leave to apply for home detention should have been granted, although
I think it is
accepted in oral submissions that that is not really appropriate.
[8] The Crown accept that the sentence imposed
is stern, but said to interfere
with it would be tinkering, and it is not manifestly excessive. The Crown note the
unprovoked and
gratuitous nature of the violence on the victim at the hotel; the fact
that the views of the victim, while they should be considered,
do not outweigh the
interests of the public generally by reference to Taueki; that these separate and
discrete offences warrant the
use of cumulative sentences; that as a matter of totality
a starting point of two and a half years was not unjustified in all of
the
circumstances, and that the offer to make amends, while perhaps genuine when
given, was not available to the Judge because of
the appellant's own activity. That is
a reference to the fact that this man entered the Bridge Programme and was thrown
out of it
after nine days because of his failure to abide by the rules.
[9] That left the Judge, in the Crown's correct submission, with
no alternative
but to impose a custodial sentence. Any amends that could be made by this man
would depend on the Court not imposing
a custodial sentence.
[10] As I noted right at the beginning of these full and thorough submissions of
Mr Cadogan, this Court
must stand back and look at this matter overall. This is a
man who has personal aggravating features in that he has a number of previous
offences of violence, starting in 1999 for possession of an offensive weapon and a
serious assault; a further common assault in 2001,
and a fighting in a public place in
2004. He has a number of alcohol-related driving offences, and clearly also has a
drug problem
because he has drug offending as well.
[11] He is stated by the probation officer to be at high risk of reoffending, which
again
is not particularly surprising given his inability to control himself while
drinking, and the fact that he, despite his protestations,
seems unable to address those
particular problems.
[12] It is a matter of considerable concern that the Court was prepared to
grant
him bail, yet he offended in a violent way while on bail. There are aggravating
features in that he twice breached protection
orders in relation to his offending
against his former partner.
[13] Mr Cadogan made a general submission that this was a man
suddenly gone
out of control and failing to deal adequately and properly with the end of a
relat ionship. With all due respect to
that submission, Mr Geddes' considerable
criminal record stands against it. The real problem with Mr Geddes is his addiction
to both
alcohol and it would appear drugs, and particularly while under the influence
of alcohol he has no control over his behaviour which
leads him to offend in a
vio lent way.
[14] Two of the cases referred to by Mr Cadogan and the Crown relate to cases of
first
offenders where very substantial allowances were made. These cases were put
forward to attempt to show that the fifteen months' imprisonment
on the injuring
with intent was too great.
[15] I must say the decision in Pan v Police HC AK CRI-2005-404-000325 3
February
2006 I find somewhat difficult. Where the Judge refers to what he
describes as "relatively minor injuries" suffered by the
victim it appears that those
injuries included a broken nose, contusions, and a loss of consciousness which led to
several hours
of hospital treatment. The same could be said for the violence in R v
McRoy and Anor (CA 261/06, 12 October 2006). The reality is,
however, that those
cases, and the other authorities referred to by Mr Cadogan, show that cases of more
serious violence than this,
both for first offenders and others, have led to lower
sentences than imposed in this case.
[16] Standing back overall I do
consider that the final sentence imposed is
manifest ly excessive. I do not criticise the use of cumulative sentences that was
ent irely appropriate, and given that the second of those was committed while on bail,
and given that they were both in breach of
protection orders, the sentences imposed
on those should stand. However, on the assault with intent to injure an appropriate
sentence
using the appellate authority in my view was one of 12 months'
imprisonment, and that sentence is reduced to that amount, reducing
the overall
sentence to one of 20 months' imprisonment.
[17] I note the Crown's comment that that could be seen as tinkering.
It is
approximately a 20 per cent deduction, which is not tinkering, nor would it be
viewed by a person serving a sentence
as tinkering.
[18] The application for home detention was always bound to fail given that this
man had been to the Bridge Programme
and had been unceremoniously thrown out
for his failure to abide by the rules. Mr Geddes is not yet nearly at a stage where he
is
prepared to take opportunities given to him by the Courts to deal with his alcohol
problem. He will continue offending until he reaches
that stage.
[19] The appeal is allowed to the extent that the sentence of 15 months'
imprisonment on the injuring with intent
is reduced to 12 months' imprisonment.
The overall effect is to reduce the effective sentence from 23 months to 20 months.
Solicitors:
Bodkins, Alexandra
Crown Solicitor, Dunedin
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URL: http://www.nzlii.org/nz/cases/NZHC/2007/768.html