B v Police HC Nelson Cri-2009-442-18

[2009] NZHC 2316

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2009-442-000018

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 December 2009

Appearances: The appellant in person

H Boyd-Wilson for the respondent

Judgment:      17 December 2009

JUDGMENT OF CLIFFORD J

[1]      Mr B   faced one charge of common assault (s 196 Crimes Act 1961). He pleaded guilty to that charge, and was sentenced by the District Court to 200 hours’ community work and six months’ supervision.

[2]      Mr  B    originally  appealed  against  his  conviction.    He  said  that, although he had been charged with assaulting a child under 14 years, his victim had in fact been 14 years or over at the relevant time.  He could not, therefore, be guilty

of the offence with which he had been charged.

B V POLICE HC NEL CRI-2009-442-000018  17 December 2009

[3]      In  a  reserved  judgment  of  6  October  2009,  Dobson  J  dismissed  Mr B  ’s appeal against his conviction.  In doing so Dobson J first observed that, although originally charged with assaulting a child under the age of 14 years, that charge had subsequently been amended to one of common assault.  It was the charge of common assault to which Mr B   had pleaded guilty.  His appeal could not therefore succeed.

[4]      Dobson J further recorded that at the hearing before him Mr B   had sought leave to vacate his guilty plea.  Mr B   had done so by reference to the fact that he had been recently diagnosed as suffering from a diabetes condition.  It was Mr B  ’s contention that his offending could be put down to that condition, entitling him to vacate his plea.  Dobson J did not grant that application. Rather,  Dobson J adjourned the hearing of Mr B  ’s appeal so that he could advance an appeal against his sentence by reference to the potentially mitigating significance of his recently discovered diabetes condition.

[5]      At the hearing before me, Mr B   did just that, and also raised the significance of that condition for earlier offending dating back as far as 1985.

Background

[6]      Mr B   was living with the mother of the 14 year old complainant.  Mr B   and the mother had just got engaged and were celebrating.  Mr B   drank too much.  He punched the complainant in the nose, and then hit him on the head with a wooden shower brush, causing his head to bleed.  When spoken to by the Police he could not remember what happened.

[7]      Mr B   has a history of violent offending, in 1995 (assault with intent to injury), 2003 (assaulting Police), for which he was sentenced to four months’ imprisonment (cumulative on other offending) and 2003 (wounding with intent to injure), for which he was sentenced to two years’ imprisonment.  He has six other convictions.

[8]      A pre-sentence report made available to the Court noted that Mr B   was remorseful.   He was attending a parenting course at Barnardos.   He was motivated and willing to address his alcohol use.

[9]      Mr B  ’s (now) wife, the complainant’s mother, said Mr B   had not shown any violence previously and she was looking forward to him moving back with the family.

[10]     The Judge held that imprisonment was not appropriate on the facts, and given the domestic background and what “is currently happening in [his] family situation”. He  imposed  a  sentence  providing  “some  punishment  and  some  help”  and  said another assault would see Mr B   go to prison.

Discussion

[11]     Mr B   placed before me various materials he had sourced from the internet which identify and explore possible links between violent behaviour and diabetic conditions.   In particular, Mr B   provided me with a copy of an article entitled “Violent Behaviour Brain Dysrhythmia, and Glucose Dysfunction: A New Syndrome” by J A Yaryura-Tobias (MD) and F A Neziroglu (BA), which was published  in  1975  in  the  Journal  of  Orthomolecular  Psychiatry  (as  it  was  then known; (1975) 4 J Orthomol Med 182).  That article suggested that hypoglycaemia and brain dysrhythmia were two factors that interacted with, and seemed to cause, aggressive behaviour.

[12]     Mr B   also placed before me a letter from his doctor which reads as follows:

This is to confirm that the above patient has recently been diagnosed with non-insulin  dependent  diabetes  mellitus.    It  is  possible  that  it  has  been present for some time and could have affected his behaviour and well-being.

He  has  now  been  started  on  diet  and  oral  hypoglycaemics  which  have already resulted in an improvement in his energy and mental clarity.

[13]     From Mr B  ’s perspective, the possible significance of his recently diagnosed  diabetes  has  provided  him  with  important  help  in  understanding  and

addressing his earlier behaviour patterns.  He hopes that, on this new basis, he can in the future avoid behaviour of the type that has previously got him into trouble.

[14]     I acknowledge the insights Mr B   says he has obtained from his recent diagnosis.   I acknowledge the doctor’s assessment, that Mr B  ’s condition may have been present for some time and could have affected his behaviour.  I also acknowledge the doctor’s opinion that the treatment Mr B   is now undertaking for that condition has helped his mental clarity and energy, a view Mr B   strongly supports.

[15]     Having said that, I am not of the view that the sentence which Mr B   challenges is one that – even allowing for some influence from his diabetes – can be said to have been manifestly excessive.

[16]     Aggravating features of the offending are the domestic context and the age of the victim.  The assault was relatively violent and has caused the complainant to fear for his safety.  In addition, Mr B   has a number of previous convictions for violence – for some of which he has been imprisoned.

[17]   In these circumstances, a short period of imprisonment may have been warranted.    However,  mitigating features  personal  to  Mr  B    are that  he pleaded guilty, he was remorseful and apologised, and he has attended a parenting programme and is willing to get help for his alcohol issues.

[18]     Overall, therefore, it is my view that a sentence was required that was both rehabilitative, and designed to assist Mr B   overcome his alcohol and behavioural problems, as well as one that marks the Court’s denunciation of this sort of offending, and hopefully provides deterrence and an element of punishment.  A combined sentence of community work and supervision meets these purposes.

[19]     Finally, the length of the sentence, in my view, is not out of range.  At least six  months’  supervision  is  likely  to  be  required  to  provide  assistance  to  Mr B   in dealing with his alcohol problems.  Community work of 200 hours is

stringent, but in light of the seriousness of the assault and Mr B  ’s criminal history, is not, in my view, manifestly excessive.

[20]     I therefore dismiss Mr B  ’s appeal against his sentence.

[21]     Mr B   should not, however, regard his efforts in bringing the possible significance of his diabetic condition to the Court’s attention as having been without a positive effect.  As he himself said, the new perspective that understanding gives him may help him address aspects of his personality which may, in the past, have contributed to his offending.  I hope that perspective will help him avoid this type of behaviour in the future.

“Clifford J”

Solicitors:   Crown Solicitor, P O Box 42, Nelson for the respondent