Anderson v Police

[2012] NZHC 2651

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000040 [2012] NZHC 2651

DANIEL JAMES ANDERSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 October 2012

Counsel:         R D Checketts for Appellant

R D Smith for Respondent

Judgment:      11 October 2012

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

DANIEL JAMES ANDERSON V NEW ZEALAND POLICE HC DUN CRI-2012-412-000040 [11 October

2012]

[1]      Mr Anderson pleaded guilty in the District Court to charges of injuring with intent to injure, assaulting a female (x 2) and three charges of intentional damage.

[2]      On 26 July 2012, Judge Flatley sentenced Mr Anderson to an effective term of two years imprisonment.[1]   He now appeals to this Court on the basis that the end sentence is manifestly excessive.

Factual background

[1] New Zealand Police v Anderson DC Alexandra CRI-2012-002-000224, 26 July 2012.

[3]      In order to understand the issues that arise on appeal, it is necessary to set the factual background out in further detail.  I take this from summaries of fact that, as amended, were apparently accepted in the District Court.

[4]      These reveal that the charges arose as a result of four separate incidents, three of which involved the same victim.  She was Mr Anderson’s partner at the time of the offending.

[5]      The first incident occurred on 14 March 2012.   On that date, an argument developed between Mr Anderson and his partner.   This resulted in Mr Anderson placing his right hand around his partner’s throat, and pinning her against the wall in the hallway of their home.  He then punched the wall immediately beside her head, smashing a photograph and causing a hole in the wall in the process.

[6]      Mr Anderson’s partner then ran into her daughter’s bedroom, but he pursued her.  He pinned his partner on a couch, and again placed his hand around her throat. He also punched the sofa immediately to the side of her head.  The summary records that Mr Anderson’s partner was extremely upset and distressed by the incident, but she did not report it to the police at the time.

[7]      The next incident occurred on the afternoon of 22 March 2012.  On that date, Mr Anderson and his partner were at their home address after having uplifted their

two children from school.  For some reason, Mr Anderson became angry whilst he was working on his computer.  This prompted his partner to tell Mr Anderson that if he was going to get angry he should leave the address.  After the children left the address to go to the park, Mr Anderson’s partner told him to leave because he was still angry.  She also told him that she had already packed his bags.

[8]      Mr Anderson became even angrier at this.  He walked past a large television set in the lounge and pushed it onto the lounge floor, thereby damaging it.  He also damaged a landline phone and the cellphone belonging to his partner.

[9]      His partner asked him to leave again.  At this point, he grabbed his partner around the neck with his hand and swung a punch at her.  This hit the couch beside her head.  Mr Anderson then engaged in a serious, and reasonably prolonged series of assaults against his partner.  This involved him punching his partner repeatedly with a closed fist to the head as he held onto her throat.  When she tried to get up, he slapped her across the face and tightened his grip around her throat.   As Mr Anderson’s partner struggled, she slid onto the floor.   He remained on top of her, forcing her head into the carpet by placing his forearm across her throat.  He then punched the carpet beside her head.

[10]     A short time later, the children arrived home and the assaults ceased.   Mr Anderson continued to follow his partner around the house, however, and did not allow her out of his sight.  At one stage, whilst Mr Anderson’s partner was outside, he came out of the house holding a steak knife in his right hand.  He then approached his partner in what I perceive to be an extremely threatening manner.

[11]     The next incident occurred on the evening of 16 May 2012.  By this stage, Mr Anderson was on bail in relation to charges that the police had laid in relation to the incident on 22 March 2012.  One of the conditions of his bail was that he was not to associate with his partner.   Counsel now agree, however, that he had been at the address throughout that day with the consent of his partner, and that he was there on the evening of 16 May 2012 with her consent.

[12]     A further incident occurred on this evening.  It began with verbal abuse by Mr Anderson towards his partner.  When she asked him to leave, he became enraged and refused to leave.   He also became aggressive, snapping his flip-top cellphone over his knee.  When his partner went to call the police, Mr Anderson grabbed the phone from her before she could speak to the operator.  He then grabbed his partner from behind and lifted her off the ground.  He carried her down the hallway to her bedroom, where he threw her onto the bed and got on top of her.  When she looked up, Mr Anderson was standing over her with a closed fist in a manner that suggested that he was about to punch her.  He threw a punch, but this hit the pillow beside her head.

[13]     Mr Anderson was arrested as a result of this incident.  The following day he kicked a door at the police station and cracked a pane of glass in the door.

The charges

[14]     It is necessary to outline the facts in some detail in order to explain the charges that Mr Anderson ultimately faced. The most serious incident was obviously that  on  22 March  2012,  when  Mr  Anderson  physically  assaulted  his  partner repeatedly and also threatened her with a knife.   The police no doubt intended to charge Mr Anderson with injuring his partner with intent to injure her on that date. Unfortunately, however, they laid that charge in relation to the incident on 14 March

2012.  That was obviously an error.  I have no doubt that the police intended to lay that particular charge in relation to the incident that occurred on 22 March 2012.

[15]     The police laid an information charging Mr Anderson with the lesser charge of assaulting his partner on 22 March 2012, as well as two charges of intentionally damaging his partner’s landline telephone and her cellphone on that date.

[16]     Mr Anderson faced a further charge of male assaults female in respect of the incident that occurred on 16 May 2012.   Finally, he faced a charge of intentional damage in relation to the incident that occurred at the police station on 17 May 2012.

The sentence

[17]     The Judge took the view that the lead, or most serious, charge was that of injuring with intent to injure.   His sentencing notes make it clear that he did not appreciate that the police had laid that charge in respect of the incident that occurred on 14 March 2012.  Instead, he proceeded on the basis that it related to the incident that occurred on 22 March 2012.   He considered that charge to warrant a starting point of 12 months imprisonment.  He increased this by eight months to reflect the charge relating to the incident on 14 March 2012.  He then increased it by a further ten months to reflect the incident that occurred on 16 May 2012.

[18]     This led the Judge to an end starting point of 30 months imprisonment.  He applied an uplift of two months to reflect the fact that Mr Anderson has a reasonably lengthy criminal history, including several convictions for wilful damage and common  assault.     This  left  the  Judge  with  an  end  sentence  of  32  months imprisonment before taking into account mitigating factors.

[19]     The only mitigating factor was the fact that Mr Anderson had entered guilty pleas at a relatively early stage.  The Judge applied a discount of 25 per cent, or eight months, to reflect that factor.   This left him with an end sentence of two years imprisonment.   He imposed that sentence on the charge of injuring with intent to injure. He then imposed concurrent sentences on all other charges.

Recasting the sentences to reflect the charges laid

[20]     During the hearing today, the error that the police made when laying the informations came to light. As a result, it has been necessary to notionally recast the sentences that the Judge imposed so as to reflect the gravity of the offending as it relates to the charges actually laid.   Counsel are, however, in a broad measure of agreement regarding the appropriate sentence to be imposed in relation to each charge.  The principal area of difference relates to the starting point to be applied in relation to the charge of male assaults female on 22 March 2012.

[21]     Counsel  for  the  Crown  accepts  that,  had  it  stood  alone,  the  incident  on

14 March 2012 is unlikely to have attracted a sentence of imprisonment regardless of the nature of the charge laid.   Rather, it would have been dealt with by way of a sentence of community work, or perhaps community detention.   The subsequent offending means, however, that a custodial sentence is inevitable in relation to this charge.  A starting point of 12 months imprisonment could not possibly be justified on that charge, given the gravity of the offending.   Instead, counsel agree that a starting point of two months imprisonment on that charge would be appropriate.

[22]     The next issue is the starting point to be applied in respect of the charge relating to the incident that occurred on 22 March 2012.   The maximum penalty available on a charge of male assaults female is a sentence of two years imprisonment.

[23]     The Judge was clearly of the view that this was a serious incident, and I agree.   It involved numerous aggravating factors.   These include the fact that it involved repeated blows to the head of Mr Anderson’s partner.  It also included other forms of threatening behaviour.  Finally, a significant aggravating factor is the use of the knife to threaten Mr Anderson’s partner.

[24]     Had Mr Anderson already been charged and released on bail as a result of the incident that occurred on 14 March 2012, that would have been a further aggravating factor.  As the summary records, however, Mr Anderson’s partner had not reported the earlier incident as at 22 March 2012.  For that reason, it does not amount to an aggravating factor.

[25]     Viewing matters overall, I consider the Crown to be correct when it says that a starting point of around 18 months imprisonment is appropriate in relation to this incident.  I do not, however, consider that an additional uplift is required to reflect the fact that Mr Anderson damaged his partner’s landline and cellphone on that date. I consider that offending formed part and parcel of the events that occurred on 22

March 2012, and that a starting point of 18 months imprisonment adequately reflects the gravity of all of the offending that occurred on that date.

[26]     Next, it is necessary to consider the appropriate starting point on the charge of male assaults female laid in respect of the incident that occurred on 16 May 2012. On its own, I consider that charge would warrant a starting point of three months imprisonment.  There is the aggravating factor, however, that this offending occurred whilst Mr Anderson was already on bail in relation to the earlier charges.   As a consequence, his offending on this date is significantly more serious than that which occurred on 14 March 2012.  I consider an appropriate starting point in relation to this charge to be a sentence of six months imprisonment.

[27]     A very small uplift in relation to the charge of intentionally damaging the door at the police station is appropriate.  I would add one month to reflect that fact. This leads to an end starting point on all charges of 27 months imprisonment.

[28]     The  Crown  submits  that  an  uplift  of  three  months  imprisonment  is appropriate to reflect Mr Anderson’s previous convictions.  I consider, however, that the Judge was correct to apply an uplift of two months given the fact that earlier charges of common assault and wilful damage had resulted in sentences of community work.  This leads to an end starting point before considering mitigating factors of 29 months imprisonment.  Applying the same discount as the Judge, the sentence would be reduced to 22 months imprisonment.

[29]     The issue then becomes whether the end sentence the Judge imposed can be said to be manifestly excessive having regard to the end sentence that I would have imposed based on the information now available.  I do not consider a discrepancy of two months to fall within the category of being manifestly excessive.  It is still, in my view, within the range available to the Judge.

Result

[30]     For  that  reason,  although  I reach  a  slightly different  view  regarding  the appropriate end sentence, it is not sufficient to justify interfering with the sentence that the Judge imposed.

[31]     The appeal is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Dunedin
Counsel:

Checketts McKay Law Ltd, Alexandra