Andrews v Police - [2012] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000122 [2012] NZHC 192

BRUCE IAN ANDREWS
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 15 February 2012

Appearances: A James for Appellant
MAV Raj for Respondent

Judgment: 15 February 2012

JUDGMENT OF CHISHOLM J

[1] Having pleaded guilty to male assaults female and threatening to kill the appellant was sentenced to 18 months imprisonment. He appeals against that sentence on the basis that it was manifestly excessive. The victim is the appellant’s wife.

[2] At about 8:45 p.m. on 9 July 2011 the appellant returned home intoxicated. He had been working for Canterbury Waterblasters on earthquake related work. A dispute erupted after his wife asked him where he had been and he began punching her on the face with both fists. He then dragged her by her hair. When she locked herself in the bathroom he forced his way in, grabbed the phone that she was
attempting to use, and dragged her to the bedroom where he began punching her

ANDREWS V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000122 [15 February 2012]

again. At that stage he threatened to kill or cause grievous bodily harm. Ultimately she escaped.

[3] Fortunately the injuries to the victim were not serious. However, she suffered a cut and bruising.

[4] The appellant is 54 years of age. He has previous convictions, including common assault, assault with intent to injure, indecent assault and kidnapping in
1997. Those convictions are, of course, relatively historical. He also has a conviction for common assault in 2008 which involved the same complainant.

[5] It was reported by the probation officer that the appellant’s employer regarded him as an excellent employee. Alcohol and substance issues are referred to in the probation officer’s report which also expressed the view that the appellant tended to minimise his offending and shifted some of the blame to his wife. Home detention was recommended.

[6] Because the recording device failed there are no sentencing remarks. Counsel have helpfully reconstructed the Judge’s sentencing approach from Mr James’ notes. The Judge noted that the appellant tended to divert responsibility. He referred to R v Taueki1 and commented this was actual and prolonged violence with threats and that there was a need for deterrence.

[7] Adopting the male assaults female charge as the lead charge the Judge started at 15 months imprisonment, applied an uplift of nine months to reflect the threatening to kill and a further uplift of six months for previous convictions. From the notional sentence of two and a half years he allowed a credit for the guilty plea but did not extend any credit for remorse. He then applied the totality principle and arrived at a total sentence of 18 months imprisonment.

[8] In well constructed submissions Mr James accepts that imprisonment was appropriate. An argument that it should have been home detention was abandoned.

1 R v Taueki [2005] 3 NZLR 372

[9] His submission is that the sentence was manifestly excessive; the starting…

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: [2012] NZHC 192
Decision Date: 15 February 2012

CaseChat Overview and Summary

In the case of Andrews v Police, the appellant, Bruce Ian Andrews, appealed against his 18-month imprisonment sentence, arguing that it was manifestly excessive. Andrews had pleaded guilty to charges of male assaults female and threatening to kill his wife. The court had to determine whether the sentence imposed was appropriate given the nature of the crimes and the appellant's history of offending. The court considered the seriousness of the assault, the need for deterrence, and the appellant's previous convictions, particularly those involving his wife. The sentencing judge had applied an uplift to the base sentence for the threatening to kill charge and for the appellant's criminal history, but had not granted a credit for the guilty plea or for the appellant's work on earthquake-related projects.

The High Court, in dismissing the appeal, acknowledged that the sentence was at the higher end of the spectrum but found it to be within the range available to the sentencing judge. The court highlighted the appellant's history of violence against his wife and the need for deterrence and denunciation. While the court recognised some merit in the argument that the threatening to kill charge should have been considered concurrently, it concluded that the total sentence was not manifestly excessive and was within the appropriate range. The court dismissed the appeal, noting that any reduction in the sentence would amount to tinkering with the overall punishment.

Orders