Bonniface v Police - [2023] NZHC 3674

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-210

[2023] NZHC 3674

BETWEEN
NATHAN BONNIFACE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 December 2023

Appearances:

A J McKenzie for Appellant A M Harvey for Respondent

Judgment:

13 December 2023

JUDGMENT OF OSBORNE J

Introduction

[1] Nathan Bonniface was convicted on two charges of assault using a motor vehicle as a weapon (the assault charges)1, one charge of driving while disqualified (3rd or subsequent)2 and one charge of breach of intensive supervision conditions.3 Judge Couch sentenced Mr Bonniface to two years, two months and fourteen days’ imprisonment on the assault charges, with shorter, concurrent sentences on the other charges.4 He appeals the sentence on the assault charges.5

1      Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.
2      Land Transport Act 1998, ss 32(1)(a), 32(4); maximum penalty two years’ imprisonment.
3      Sentencing Act 2002, s 70B; maximum penalty six months’ imprisonment.
4      Police v Bonniface [2023] NZDC 22222.
5      The appellant does not appeal against the order of disqualification made on the disqualified driving charge.

BONNIFACE v NEW ZEALAND POLICE [2023] NZHC 3674 [13 December 2023]

Background

Assaults with a blunt instrument

[2] In October 2021, Mr Bonniface was at his ex-partner’s residence, where her son and his girlfriend were also present. Following an argument, he was told to leave. He was angry. He went to his car on the opposite side of the road and got into it. He turned it around and drove through a gate down into the driveway, driving at speed towards the victims on the driveway. He veered towards them. The victims flattened themselves against a wall where the driveway slightly widened out, so as to avoid being hit by Mr Bonniface’s vehicle. He stopped the vehicle just short of where they were.

[3]The assault charges related to the two victims.

Driving while disqualified (3rd or subsequent)

[4] On 9 July 2022, Mr Bonniface was apprehended, driving a vehicle, despite having been disqualified from doing so for one year and one day on 22 July 2021.

Breach of intensive supervision

[5] In December 2021, Mr Bonniface was sentenced to 12 months’ intensive supervision on charges under the Misuse of Drugs Act 1975. Mr Bonniface breached his special condition to not possess or consume illicit substances by failing the drug test in August 2022 and failing to present for drug tests in July and September 2022.

Procedural history

[6] Mr Bonniface went to trial before Judge Couch facing six charges arising from the October 2021 events, being assaults on three persons with a car, and assaults on three persons with a knife. At the close of the Police case, Mr Bonniface pleaded guilty to two of the assault charges. Police withdrew the remaining four charges.

The District Court sentence

[7] For sentencing, Judge Couch took the two assault convictions as the lead offending. He n ted the five years’ imprisonment maximum penalty. He considered the offending…

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.

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Details

Case: [2023] NZHC 3674
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Nathan Bonniface appealed against the sentence imposed by Judge Couch on two charges of assault using a motor vehicle as a weapon. The appeal centred on the appropriateness of the starting point, the adjustments made for totality, personal aggravating and mitigating factors, and the overall sentence. The legal issues included whether the starting point was correctly calculated, whether the adjustments for totality, offending on bail, and criminal history were appropriate, and whether the credit for guilty pleas was adequate.

The court found that the starting point for each of the charges was within range but recognised that a reduction for totality was warranted, which would have led to a starting point of 21 months. The court accepted that the 10% uplift for offending on bail and the 10% uplift for criminal history were appropriate. However, the court considered that the global discount of 5% for guilty pleas was appropriate. The court concluded that the sentence imposed was not manifestly excessive, and therefore, the appeal was dismissed. However, the court substituted a sentence of 10 months' home detention for the original sentence of two years, two months and 14 days' imprisonment on the assault charges, to be served at the address identified in the Department of Corrections' report dated 3 October 2023.

The court also quashed the concurrent sentences of four months' imprisonment on the charge of driving while disqualified and two months' imprisonment on the charge of breach of intensive supervision. The appellant will be subject to standard conditions set out in s 80C(2) of the Sentencing Act 2002, as well as special conditions, including attending an appropriate non-violence programme and not possessing or consuming drugs or alcohol other than that medication which may be lawfully prescribed. The order disqualifying the appellant from holding or obtaining a driver’s licence remains unaltered.

Orders