Anderson v Police - [2019] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000036

[2019] NZHC 3355

BETWEEN
SAMUEL ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2019

Appearances:

B P Kilkelly for Appellant R P Bates for Respondent

Judgment:

17 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 18 September 2019 Judge Phillips sentenced Samuel Anderson to four years and five months’ imprisonment on one charge of threatening to kill, four charges of assault with intent to injure, a charge of supplying MDMA, and a charge of driving on a suspended licence.

[2] He now appeals that sentence on the sole ground that the uplift of six months for previous convictions was too high.

Facts

[3] On 9 February 2018 Mr Anderson and the victim were at their home in Dunedin. An argument occurred and Mr Anderson headbutted the victim, knocking her out. He picked her up and elbowed her in the head, knocking her to the ground

ANDERSON v NEW ZEALAND POLICE [2019] NZHC 3355 [17 December 2019]

again. He then splashed water on her face to revive her before punching her in the face. The victim suffered a black and swollen eye, swollen nose and chipped tooth as a result.

[4] On 23 March 2018 he met with a person with whom he was communicating by text message. He supplied that person with an unknown quantity of MDMA.

[5] On 3 April 2018 he and the victim were at home. He took her cell-phone and went to leave the house with it. She protested because she did not want him to take it. He became angry with her and got on top of her. He pulled her fingers back, grabbed her by the arms, attempted to gouge her eye, elbowed her in the eye, kneed her tailbone, slammed a knee or fist in her face, pressed the pressure points behind her ears, put a foot on her head and placed a pillow over her face. The victim suffered multiple bruises to her arm, hand and legs, abrasions to her head, neck, chest and back. She suffered a swollen black eye, a broken capillary behind her ear, and pain in her sternum and back.

[6] On 9 May 2018 he and the victim were at home together. He was upset at her so he jumped on top of her on the bed and tried to grab her around the neck. As the victim struggled, she fell off the bed and ended up on the floor between the bed and the wardrobe. He then jumped on her shins and got on top of her, forcefully putting his knee into the area of her ovaries. He tried to put his hands around her throat. She wriggled onto her side and hit him on the arm attempting to stop the attack. He got off her and kicked her in the thigh. The victim suffered bruising and tenderness to her shins and thigh.

[7] On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 3355
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, Samuel Anderson appeals against his sentence, arguing that the uplift of six months for his previous convictions was excessive. Anderson was sentenced to four years and five months' imprisonment for various charges, including threatening to kill, assault with intent to injure, supplying MDMA, and driving on a suspended licence. The District Court had imposed an uplift of six months for Anderson's previous convictions, which Anderson contests.

The primary legal issue before the court was whether the six-month uplift for previous convictions was appropriate. Anderson's counsel argued that the uplift was excessive and amounted to a form of re-sentencing, whereas the Crown maintained that the uplift was within the range available to the sentencing judge. The court considered the principles of sentencing, particularly the need to reflect the offender's increased culpability due to previous convictions, without effectively re-sentencing the offender.

The court found that an uplift for previous convictions should reflect the offender's increased culpability, particularly if the current offending was of the same type as the previous convictions and demonstrated a lack of deterrence. In this case, Anderson's current offending was of the same violent nature as his previous convictions, and he had not been deterred by his previous sentence. Therefore, the court concluded that the six-month uplift was appropriate, and the sentence was not manifestly excessive. The appeal was dismissed.

Orders