Bigham-Hill v R - [2019] NZHC 753

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2019-485-9

[2019] NZHC 753

BETWEEN
JOSHUA BIGHAM-HILL

Appellant

AND

THE QUEEN

Respondent

Hearing: 3 April 2019

Counsel:

G T Pickering and C Thorburn for Appellant F A M Manning for Crown

Judgment:

9 April 2019

JUDGMENT OF MALLON J

Introduction

[1] Mr Bigham-Hill pleaded guilty to a charge of male assaults female.1 He was sentenced in the District Court to 18 months’ imprisonment and declined leave to apply for home detention.2 One of the conditions of release imposed was that Mr Bigham- Hill could only have contact with the victim if it was expressly authorised by his Probation Officer. A protection order was also made.3

[2] Mr Bigham-Hill appeals against his sentence. He says the sentence was manifestly excessive, leave to apply for home detention should have been granted, and the release condition requiring approval for contact with the victim should not have been imposed.

1      Crimes Act 1961, s 194(b) (maximum penalty: two years’ imprisonment).
2      Police v Bigham-Hill [2019] NZDC 1292.
3      Sentencing Act 2002, s 123B.

BIGHAM-HILL v R [2019] NZHC 753 [9 April 2019]

The offending

[3] Mr Bigham-Hill and the victim had been in a relationship for around 18 months at the time of the offending.

[4] At around 2.15 am on 6 September 2018, when Mr Bigham-Hill and the victim were together in a hotel room, an argument developed. Mr Bigham-Hill became angry and grabbed the victim around the neck using both hands and applied pressure until she felt as though she was about to pass out. He then released her and punched her once in the head with a closed fist and then slapped her across the face using an open palm. The victim tried to scream for help, but he covered her mouth and nose to stifle the noise. She tried to call the Police but Mr Bigham-Hill grabbed her phone. She fled from the hotel room despite Mr Bigham-Hill trying to pull her back into the room.

[5] The victim blacked out for around 30 seconds. After she had left the room she vomited three or four times, and felt dizzy, nauseous and soreness to her neck. In a statement signed later that day the victim described Mr Bigham-Hill as controlling, and said she feared for her safety and thought that one day he would kill her. She also said she wanted a protection order. In her formal victim impact statement signed on 22 January 2019 she said she loved Mr Bigham-Hill, and would wait for him, but his violence towards her had been out of control and he needed help. She said she wanted to live her life with him as long as he changed and got help.

The offender

[6]Mr Bigham-Hill is 25 years old. He has 14 previous convictions:

(a)injuring with intent (May 2015);

(b)male assaults female (October 2015);

(c)male assaults female and contravening a protection order (November 2015);

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bigham-Hill v R

Details

AGLC: Bigham-Hill v R [2019] NZHC 753
Case: [2019] NZHC 753
Decision Date: 9 April 2019

CaseChat Overview and Summary

Joshua Bigham-Hill appealed against his 18-month imprisonment sentence for male assaults female, imposed by the District Court. The appeal was dismissed by Mallon J in the High Court of New Zealand. The key issues before the court were whether the starting point and uplift for the sentence were too high, whether the District Court should have allowed discounts for personal mitigating factors, and whether the release condition that Mr Bigham-Hill could only contact the victim with the express permission of his probation officer was appropriate. The High Court found that the starting point and uplift were not too high, and that the District Court was not required to allow further discounts for personal mitigating factors. The release condition was found to be entirely appropriate given the circumstances.

The High Court noted that the District Court was entitled to set the starting point at the maximum penalty of 24 months imprisonment, given the seriousness of the offending and Mr Bigham-Hill's history of violent offending against women. The uplift of six months for Mr Bigham-Hill's previous convictions was also considered appropriate given that his previous sentences had not curbed his tendency to offend in this way. The Court found that the end sentence of 18 months imprisonment was not manifestly excessive and any adjustment to it would constitute unwarranted tinkering on appeal. The Court also found that the District Court was not required to allow further discounts for personal mitigating factors such as Mr Bigham-Hill's remorse, relative youth, and rehabilitative efforts, given his high risk of re-offending and moderate risk of harm in the context of an intimate relationship. Finally, the release condition was found to be appropriate as it provided the victim with an additional layer of protection and was intended to assist Mr Bigham-Hill's reintegration into the community.

Orders