B v Police HC Hamilton CRI-2010-419-20

[2010] NZHC 513

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-20

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 April 2010

Appearances: Anthony Nolan for Appellant

Richard Annandale for Respondent

Judgment:      22 April 2010

JUDGMENT OF HARRISON J

SOLICITORS

Anthony Nolan (Hamilton) for Appellant

Almao Douch (Hamilton) for Respondent

B V POLICE HC HAM CRI-2010-419-20  22 April 2010

[1]      Mr B   appeals against his conviction in the District Court at

Hamilton on charges of assaulting a female and common assault and his sentence of

220 hours of community work together with supervision for a period of nine months.

[2]      Mr B   filed the notice of appeal in person together with a supporting memorandum.    However,  Mr Nolan  has  appeared  for  him  today  and  advanced succinct   but   effective   submissions.      Mr Nolan   has   responsibly   withdrawn Mr B  's appeal against conviction.   Mr B   entered a plea of guilty and did not apply in the District Court to vacate his plea or for a rehearing.  There are no grounds upon which his appeal against conviction could be allowed.

[3]      Mr Nolan advises that Mr B   takes some issue with the summary of facts upon which Judge Connell sentenced him on 1 December 2008.  He raises an element of provocation.   However, he does accept the core ingredients of the offending as accurately recorded by Judge Connell.  Mr B   was asleep in bed one evening when he was awoken by a neighbour to assist in resolving a dispute over parking a motor vehicle.   While that may be correct, that factor does not mitigate against what happened following.  He pushed the female neighbour in the chest.   He also swung a punch at the head of a male neighbour.   He punched the woman again.  He then punched a man two or three times on the side of the head. His victim impact report records that as a result of this attack he received bruising to the side of his head and suffered a painful jaw which caused eating difficulties for the next 10 days.  He has also suffered adverse emotional consequences.  The female victim is in the same category.

[4]      Judge Connell was correct to condemn Mr B  's offending.   He is a

56 year old man with a relatively good previous record.   His conduct was out of character.   That factor did, I suspect, save him from a sentence of imprisonment. Judge  Connell's  notes  make  it  plain  that  the  decision  was  finely  balanced. Ultimately  Mr B    received  a  merciful  sentence  which  could  never  be characterised as wrong in principle or excessive.

[5]      Mr B  's appeals against conviction and sentence are dismissed.

Rhys Harrison J