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 point was too high; the Judge should have approached the threatening to kill as part and parcel of the male assaults female; the uplift of nine months for the threatening to kill should not have entered into the equation; there should have been an credit for the difficult earthquake related work in which the appellant had been engaged over the 12 months before the offending and for the favourable view expressed by his employer; the starting point should have been about nine months, with an uplift of six months for previous convictions and then a discount for the guilty plea and other mitigating factors; this would have produced a sentence of less than 12 months imprisonment.  Mr James cited five decisions of this Court where the end sentence for male assaults female was considerably less than the sentence the sentence in this case.

[10]     In response Ms Raj argued that there is no tariff and that the sentence, while stern, was within the range available to the Judge.  She cited three decisions of this Court where a sentence involving male assaults female that had resulted in sentences of 18 months or more.

[11]     The cases  that  have been  cited  illustrate a wide divergence in  sentences reflecting differing factual situations.  At the top of the spectrum there is a sentence of over two years imprisonment (Fox v Police)2  and at the bottom is a sentence of community work and home detention (Tawhara v Police).3   Both those cases reflect their own particular circumstances and are of little assistance on this occasion.

[12]     Probably the case that is closest to this case, at least in terms of the offending, is Taingahue v Police4  in which there was a sentence of 18 months imprisonment. However, as Mr James pointed out that sentence reflected that there had been a defended hearing which meant that there was no discount for a guilty plea.

[13]     As with most appeals, the focus in this case needs to be on the end sentence rather than the starting point.  This is particularly so because the Judge ultimately

applied a totality approach which meant that the discount from the starting point was

2 Fox v Police HC Hamilton CRI 2008-419-16, 24 April 2008

3 Tawhara v Police HC Rotorua CRI 2009-463-44, 24 July 2009

4 Taingahue v Police HC Hamilton A98/99, 17 September 1999

larger  than  would  have  otherwise  been  the  case.    While  there  is  strength  in Mr James’ argument that the threatening to kill was part and parcel of the other offending and should have attracted a concurrent sentence, it cannot be overlooked that the overall offending was very serious and the appellant had previously offended against his wife.

[14]     While I am uneasy about the sentence that was actually imposed, on balance I think that it was within the range available to the Judge.   Moreover, had I been inclined to interfere the reduction would have been such that I would have been guilty  of  tinkering.    Nevertheless,  I  want  to  acknowledge  the  thoroughness  of Mr James’ argument. The appeal is dismissed.

Solicitors:

Alister James, P O Box 802, Christchurch 8140

Raymond Donnelly & Co,  [email protected]