Anthony Bigham Appellant v New Zealand Poice Respondent
[2023] NZHC 2663
•25 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-340
[2023] NZHC 2663
ANTHONY BIGHAM
Appellant
v
NEW ZEALAND POICE
Respondent
Hearing: 19 September 2023 Appearances:
S Dickson for Appellant
A McClintock, J Dalton for Respondent
Judgment:
25 September 2023
Reissued:
2 October 2023
JUDGMENT OF WHATA J
Recall of judgment appeal against sentence
[1] Mr Bigham pleaded guilty to one charge of assault on a person in a family relationship,1 one charge of assault with intent to injure,2 and a breach of conditions of intensive supervision.3 On 3 July 2023, he was sentenced by Judge B A Gibson in the District Court at Auckland to six months home detention and six months post detention conditions.4 Mr Bigham now appeals that sentence.
1 Crimes Act 1961, s 194A. Maximum penalty two years’ imprisonment.
2 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
3 Sentencing Act 2002, s 70A. Maximum penalty six month’s imprisonment or $1,500 fine.
4 New Zealand Police v Bigham [2023] NZDC 14014 at [5].
BIGHAM v POICE [2023] NZHC 2663 [25 September 2023]
Summary of facts
[2] On 3 October 2022, Mr Bigham encountered his partner the complainant outside apartments on Symonds Street. Mr Bigham began acting aggressively towards the complainant and then engaged in argument with another individual. When the complainant intervened, Mr Bigham pushed her back with an open palm. He then punched her in the face causing Ms Maioha to fall to the ground and bleed heavily from her nose.
[3] At the time of this offending, Mr Bigham was serving a sentence of intensive supervision for a previous family violence conviction. A condition of that sentence was that he did not interact with the complainant without the approval of his probation officer.
District Court sentence
[4] The Judge referred to the facts of the offending and Mr Bigham’s prior offending including for relationship violence in New Zealand and Australia. In fixing sentence, the Judge said:
[5] Looking at the matter in the round and the starting point for this offending I take 12 months' imprisonment over the three charges and with an uplift for your previous convictions for which I ascribe three months. That leads to an end sentence of 15 months' imprisonment before I discount. The obvious and only discount I can see is one for your pleading guilty. It did not come at the first reasonable opportunity, some six months after you were first charged with the offending, but I will allow three months for that, leading to an end sentence of 12 months' imprisonment which is a short sentence of imprisonment, and I am obliged to consider other alternatives. The alternative recommended by the Probation office seems to me to be the logical sentence, having regard to the facts and so you are sentenced to six months home detention and six months post detention conditions, I make a protection order in favour of the complainant under s 123(b) of the Sentencing Act 2002.
Grounds of Appeal
[5]Mr Bigham’s appeal has three grounds. That the District Court Judge erred:
(a)in adopting a starting point of 12 months’ imprisonment;
(b)in imposing a sentence of home detention instead of a sentence of community detention and intensive supervision; and
(c)in giving no discount for time spent in custody and on curfew on remand.
Starting point
[6] Ms Dickson for Mr Bigham submits that a starting point of eight months’ imprisonment would have been more appropriate applying the principles in Nuku v R,5 applying and drawing on comparisons with Shepherd v R,6 and Taingahue v Police.7 Both cases involved multiple strikes to the head. The offending in Shepherd is said to be the most comparable where an eight-month starting point was adopted. In contrast, the assault in Taingahue, where a 12-month starting point was adopted, was more serious in involving multiple strikes to the head and face resulting in a broken tooth.
[7] Mr Dalton for the respondent refers to the following cases in support of a starting point of 12 months imprisonment: Tiplady-Koroheke v R,8 Tamihana v R,9 and Moore v Police.10 Mr Dalton outlined the factors for consideration in those cases, including whether the attack occurred in a public place, aggravating factors related to the vulnerability of the victim, and the seriousness of the injuries. Counsel submits that a 12-month starting point was not manifestly excessive and is at the bottom of available starting points where there are no substantial mitigating factors nor strong prospects of rehabilitation (as indicated by recidivist offending).
Assessment
[8] I am assisted in forming a view as to the starting point by the following observation of Miller J in Taingahue:11
5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
6 Shepherd v R [2018] NZCA 232.
7 Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.
8 Tiplady-Koroheke v R [2012] NZCA 477.
9 Tamihana v R [2015] NZCA 169.
10 Moore v Police [2015] NZHC 616.
11 Taingahue v Police, above n 7 at [16].
[16] The first question is whether the starting point was too high. The Court of Appeal has observed on a number of occasions that sentence of nine to 12 months imprisonment often result from conviction on assault with intent to injure. … In R v Hackell CA 131 /02 10 October 2002, the Court noted that sentences of less than one year are normally used only where there are substantial mitigating factors or a strong prospect of rehabilitation.
[9] While the present offending is less serious than the offending in Taingahue, a 12-month starting point for a punch to the head with such force that the victim fell to the ground is not out of range. The cases highlighted by the respondent illustrate the variation in approach to cases like this.12 While those cases involved aggravating aspects not present here, for example multiple strikes to the head and striking the victim while on the ground, the vulnerability of the victim here, the force of the punch to her face, leaving her bleeding nose, makes the offending arguably more serious. Moreover, the inherent danger of such violence to the head is well known and must be strongly deterred and denounced. There are no mitigating features of the offending. There were multiple charges, including breach of supervision conditions. While at the top end, I am not satisfied that the starting point was excessive.
End sentence of home detention
[10] Ms Dickson submits that an end sentence of community detention and intensive supervision should have been imposed and the Judge erred when sentencing Mr Bigham to home detention. He notes that the time Mr Bigham spent in custody and on curfew while in remand (cumulatively four months) has already provided significant punishment and deterrence. Other relevant factors are that Mr Bigham has not breached his current curfew or bail conditions and placing Mr Bigham back onto a strict 24-hour curfew would not further satisfy the purposes in s 7 of the Sentencing Act. Mr Bigham is said to be more likely to complete a ‘stopping violence programme’
12 Tiplady-Koroheke v R, above n 8 — two year starting point for offending involving the defendant and five associates who came across a group of men play fighting in the street. The defendant punched one victim twice in the face knocking him to the ground. The defendant punched two more victims and stomped on their heads. There were no serious injuries. Tamihana v R, above n 9 —12 months starting point for offending involving the defendant punching the victim and kicking him once in the head when he was on the ground. The victim suffered bruising and grazing to the face. Moore v Police, above n 10 — 12 months’ starting point for offending involving the defendant grabbing the victim’s hair and punching the back of head three or four times causing her to fall to the ground. The victim suffered problems with the tendons and muscles in her neck, a swollen nose, and bruising and grazing.
under intensive supervision sentence than when serving a home detention and post- detention sentence.
[11] Mr Dalton responds that a sentence of community detention would not have accomplished the objectives of deterrence and denunciation. Strong factors mandating a sentence of home detention include, the totality of Mr Bigham’s offending, his extensive history of offending in both New Zealand and Australia and that the offending occurred when Mr Bigham was serving a sentence of intensive supervision and contravened the conditions for that sentence. It is therefore submitted that a stern response was necessary and appropriate to meet the need for specific deterrence.
Assessment
[12] For the reasons largely identified by Mr Dalton, I am not satisfied the sentence of home detention was unduly harsh or that a lesser community-based sentence was mandated. First, as noted, this was a serious violent harm incident. Second, Mr Bigham breached his conditions of intensive supervision at the time of his offending, which mandated that he not associate with the complainant. This is important because Mr Bigham has a history of inter-partner violence bringing the need for deterrence into focus. Third, home detention is not a bar to attendance at a stopping violence programme. In combination these factors provide adequate justification of a home detention sentence insofar as they satisfy important sentencing objectives including denunciation, deterrence, protecting the public while at the same time enabling meaningful engagement in rehabilitative programmes. Whether home detention is more likely to discourage attendance than a community-based sentence is a matter of speculation only. The key point is that it does not disenable participation by Mr Bigham, should he wish to engage with it.
No discount for time spent in custody and on curfew
[13] While on remand Mr Bigham spent approximately two months in custody and two months on a 24-hour curfew. No discount was given for these factors in the District Court. Ms Dickson submits that Mr Bigham should have received a credit of
two months and that an additional discount for restrictive bail conditions should have been considered. On this matter counsel relies on Longman v Police.13
[14] The respondent acknowledges that a discount for time spent in custody is appropriate in the circumstances. However, the respondent submits no discount should be afforded for the two months spent on restrictive bail conditions given the breach of conditions for visiting his sister’s house while on 24-hour curfew.
Assessment
[15] As Simon France J said in Longman, the default position is that full credit is given for time in custody to reflect the need for pre-sentence detention to be applied effectively to all sentences.14 The breach of the curfew conditions however militates against the availability a further discount for the 24 hour curfew.
[16] In those circumstances, the full two months should be credited to the home detention sentence. The effect of this is to reduce the home detention sentence to four months.
Outcome
[17] In the result, I am satisfied that the sentence imposed is manifestly excessive. The sentence is short, and a small reduction will not amount to an unjustified interference.15 Accordingly, the sentence of home detention should be reduced from six months to four months with post detention conditions.
[18]Appeal allowed accordingly.
Whata J
Solicitors:
S D Pohutukawa Chambers, Auckland Meredith Connell, Auckland
13 Longman v Police [2017] NZHC 2928.
14 At [9].
15 Keown v R [2010] NZCA 492; Maihi v R [2013] NZCA 69; and Helsby-Knight v R [2015] NZCA 315.
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