Boyd v Police HC Auckland CRI-2010-404-501

[2011] NZHC 106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-501

PHILLIP BOYD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 February 2011

Counsel:         M Hislop for the appellant

F Cuncannon for the respondent

Judgment:      22 February 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr M Hislop, Barrister, Auckland

Ms F Cuncannon, Meredith Connell, Office of the Crown Solicitor, Auckland

BOYD V NEW ZEALAND POLICE HC AK CRI-2010-404-501 22 February 2011

[1]      Mr Boyd has appealed against a sentence of 6 months imprisonment for common assault.   There was also an appeal against a conviction, but that was withdrawn at the commencement of the hearing.

[2]      Mr Boyd was sentenced following a defended hearing presided over by Judge D M Wilson QC.  The assault was by Mr Boyd on his 21 year old son, James.  It occurred  at  a time when Mr Boyd  and  his  wife were going through  what  was obviously a difficult separation and during which Mr Boyd, his wife and the children were under a lot of emotional pressure.  Mr and Mrs Boyd had effectively separated although at the time of the incident they were still living in the family home.

[3]      Mr Boyd and his wife got into an argument and it escalated.  Mr Boyd’s son came downstairs.  It is reasonably apparent from Judge Wilson’s judgment leading to the conviction that Mr Boyd’s son came downstairs into the room where his mother and father were to intervene on his mother’s behalf.

[4]      The  facts  as  found  by  Judge Wilson,  including  his  determination  of  Mr

Boyd’s defence of self-defence, were as follows:

[8]       James Boyd, who is 21 now, came downstairs and abused his father. He told him to, “Fuck off”.  So he was angry, his motivation at that stage was the protection of his mother and his father responded by pushing him.

[9]       Mr Boyd Senior denies this.   I do not accept his evidence.   The pushing was a prelude to what followed.   It is not so much the pushing, though, that is the intentional application of force that is a concern here. What it was, was his response to his son taking an ineffectual swing at him, was to use his military trained abilities to grab him in a headlock and remove him to the ground.  I reject his evidence that this was simply a restraining move.  It was not self-defence either, because there was no current threat of any significance.  It was not proportionate to any problem that he was facing and he constrained his son in this way for a short period of time.   What stopped him carrying on with it was his wife intervening and his daughter ringing the police.

[5]      Mr Boyd,  having  been  convicted  on  3  May 2010,  was  sentenced  on  11

November 2010.   At that date the Judge had, as would be expected, a full pre- sentence report and a victim impact statement from the son.  (I note, but put it to one side, that there is also a victim impact statement from Mr Boyd’s wife.  There had

been a charge of assaulting Mrs Boyd, but that charge was dismissed.)  The Judge also had written material indicating relevant mitigating factors, including Mr Boyd’s attendance at a “Living With Violence” programme.

[6]      Mr Boyd at that date was aged 46.  He and Mrs Boyd had been married for

23 years.  He has no previous convictions.

[7]      At sentencing in the District Court it was accepted for Mr Boyd that there would have to be a sentence of imprisonment.  I apprehend that may have been the case because there was no residence available for home detention and it appears also to have been accepted that a lesser sentence would not be an appropriate sentence in all of the circumstances.

[8]      The question is whether the sentence of 6 months imprisonment is manifestly excessive.

[9]      With all due respect to the learned Judge, the assessment of that critical question is a little difficult because the Judge has not indicated any starting point for the sentence he imposed.  In reasonably short sentencing comments he traversed the usual considerations in respect of the offence itself and mitigating factors and then imposed the sentence.

[10]     Ms  Cuncannon,  for  the  respondent,  agreed  with  my  assessment  that  an assumed starting point, calculated from the end sentence, would be around 9 months imprisonment.  A starting point of 9 months for the offending in this case is, in my judgment, a fairly high starting point assessed against a maximum sentence of 12 months imprisonment; that is, assessing the gravity of this offending based on the Judge’s findings of fact earlier recorded. As these things go, and bearing in mind the limits on comparisons from one case to another, this certainly was not the most serious type of offending of this nature.   It could reasonably be argued – as Mr Hislop quite properly did – that the starting point could be lower.

[11]     However, what needs to be done is to make an overall assessment of the end result.  As the Court of Appeal has said on numbers of occasions, the route taken to

get to the result is not determinative.  There are relevant mitigating matters and it is apparent that the Judge took the relevant factors into account.   Those that are not expressly referred to or dealt with in detail in his sentencing comments are implicit. These include, in particular, the lack of any previous convictions of any sort at the age of 46, the emotional difficulties Mr Boyd was experiencing at the time because of  the  difficult  separation,  and  the  attendance  at  the  Living  With  Violence programme.

[12]     Weighing against those matters  are four factors referred to in  s 7 of  the Sentencing Act.  These were emphasised by Ms Cuncannon, and I agree that they have importance particularly having regard to the observations of the probation officer and other matters emerging from the evidence in respect of Mr Boyd’s overall attitude to what happened.   These factors from s 7 are the need to hold Mr Boyd accountable, deterrence – and in particular deterrence of Mr Boyd himself in respect of  future  conduct,  the  promotion  of  a  sense  of  responsibility  and  the  need  to denounce the conduct.

[13]     I do consider that the final sentence imposed is on the border.   It may be regarded in all the circumstances as severe.  In the end, however, I am not persuaded that the sentence is manifestly excessive.

[14]     The appeal in consequence is dismissed.

Peter Woodhouse J