Ashby v Police HC Wanganui CRI 2010-483-4

[2010] NZHC 999

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-04

BETWEEN  TYSON ASHBY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 March 2010

Counsel:         J Younger for Appellant

L C Rowe for Respondent

Judgment:      30 March 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Ashby appeals against a sentence of seven  months imprisonment for assault with intent to injure and theft.

[2]      The facts of the assault are that Mr Ashby was at a petrol station when he punched the victim without warning, threw him into the side of a building, and punched him a further 10 to 12 times.  The victim fell to the ground unconscious, when Mr Ashby punched and kicked him in the chest he was wearing boots and the kick to the chest must have been a heavy one because the victim suffered a cracked cartilage.  Another person intervened to stop the assault.

[3]      Eight days later Mr Ashby went to the same victim’s house and stole $1,200 worth of Xbox games.   He handed himself into the police two days later.   His justification for hitting the victim was that the victim was associating with one of his nieces and Mr Ashby did not approve of that.  Evidently he saw fit to take the law

into his own hands.

TYSON ASHBY V NEW ZEALAND POLICE HC WANG CRI 2010-483-04  30 March 2010

[4]      Mr Ashby had no previous criminal history, which as the Judge recognised presented the Court with something of a dilemma because the offence itself was certainly serious enough to justify imprisonment.

[5]      The Judge referred at some length to the probation report, which indicated that Mr Ashby has a serious anger management problem, is not motivated to change his behaviour, and has a tendency to blame the victim.  The probation officer had the opportunity of seeing Mr Ashby interact with his family, and reported that Mr Ashby considered the victim needed to be taught a lesson and should have listened to him. Although  he  is  just  19  his  family  are  intimidated  by  him.    The  report  writer expressed concern at the demeanour of family members who appeared intimidated during interview and capitulated very quickly to Mr Ashby as soon as he became angry.   He was inclined to express threatening disapproval at statements made by family  members.     For  these  reasons  the  probation  officer  had  not  explored community based sentences;  she concluded that he was not fit for an electronically monitored sentence.

[6]      At sentencing Ms Younger criticised the probation service for not preparing a home detention appendix, but the Judge thought the probation service had correctly assessed the situation.  He rejected a submission that the report should be discounted because the family were in Court and were prepared to say that they were not frightened  of  Mr  Ashby.    His  assessment  of  Mr  Ashby  was  unflattering.    He described him as a self-important, intimidating young man, quite out of control, unable and unwilling to control himself, immature but wilful and dangerous.

[7]      Having regard to the violence, which included a number of blows, blows to the head and a kick to the body, the Judge adopted a starting point of 15 months imprisonment.   He did not impose any uplift for the theft, which was sentenced concurrently.   In mitigation, he allowed four months for age and lack of previous convictions, and he made an allowance of one third or four months for the guilty plea, resulting in seven months imprisonment.

[8]      With respect to a community-based sentence, the Judge was satisfied by the probation  officer’s  report  that  such  a  sentence  was  inappropriate.    Further,  the

offending was unprovoked and serious.   A sentence of one month’s imprisonment was imposed for the theft, to be served concurrently.

[9]      On  appeal,  Mr  Ashby  contends  that  community  work  and  intensive supervision should have been ordered, alternatively home detention.   The term of imprisonment was too long, and did not reflect admissions and co-operation with the police and remorse.  In argument however, counsel accepted that the starting point was in the available range having regard to the facts of the attack.

[10]     With  respect  to  the  probation  report,  counsel  submits  that  the  probation officer did not get along with Mr Ashby and his family, Mr Ashby behaved immaturely and reacted in a hostile manner, the family believes his anger management problems have improved somewhat, he has not behaved in a hostile or violent way towards others, and the Judge declined to hear sworn evidence from Mr Ashby’s family.   This aspect of the case has caused me some difficulty.   The Judge’s assessment is certainly plausible and I can understand why he preferred the probation officer’s view, particularly in circumstances where Mr Ashby admittedly displayed an absence of insight into the offending, blamed the victim and demonstrated lack of remorse.  The facts of the offence demonstrate too that he does have significant anger management problems.

[11]     However, it is arguable that the Judge ought to have heard evidence from family members, and perhaps from the probation officer, about his behaviour during interview.  The probation officer’s report was disputed and I consider that Mr Ashby needed to have the opportunity to present contrary evidence.  I express myself in that way because I have not addressed the question whether s 24 of the Sentencing Act applied to the facts disclosed in the probation officer’s report.  If it did, there was clearly an error of law because issue was taken with the report and the police would have had to prove aggravating facts beyond reasonable doubt.  Whether that is so or not, however,  I am satisfied that fairness required that Mr  Ashby be  given the opportunity to present a contrary view, leading evidence if necessary.

[12]     That leads to the conclusion that the appeal must be allowed because it is plain that as a first offender, and in circumstances where the offence was not the

worst of its kind, home detention would normally have been an available option.  It was the probation officer’s assessment that led to the Judge discounting it.

[13]     I am not prepared however, to accept the affidavits that have been tended today on behalf of Mr Ashby.  It is not clear that either he or the address are suitable for home detention or some other community-based sentence.   The only proper course is to remand him for resentencing in the District Court.  That is the course that I will take.

[14]     Mr Ashby your appeal  is allowed.   The sentence is set aside.   You are remanded however, to appear in the District Court on 22nd  of April at Marton for resentencing.  I direct that a home detention appendix be prepared.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent