Bridger v Police - [2012] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000049 [2012] NZHC 2429

BETWEEN TYSON ZANE BRIDGER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 19 September 2012

Appearances: S McKenna for Appellant
J Tarrant for Respondent

Judgment: 19 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Hamilton
Copy to: S McKenna, Hamilton

BRIDGER V NEW ZEALAND POLICE HC HAM CRI-2012-419-000049 [19 September 2012]

[1] On 23 July 2012 the appellant Mr Bridger was sentenced by Judge Tompkins to a total sentence of 28 months’ imprisonment in relation to charges of assault with intent to injure, common assault and breach of Court release conditions. He appeals against that sentence on the grounds the sentence was manifestly excessive.

[2] A preliminary point arises. Before pleading guilty the appellant sought a sentence indication. The Judge’s notes record a sentence indication of 18 months to two years plus a cumulative term for the breach of parole.

[3] In the sentence the Judge subsequently imposed, the Judge took a start of two years four months and then imposed an end sentence of two years’ imprisonment for the assault charges and a cumulative term of four months for the breach of parole. Ms Tarrant properly raised with the Court whether in the circumstances the Judge had gone outside the sentence indication he had previously given. I indicated to counsel that I took the sentence indication to refer to the end sentence, rather than the starting point. Mr McKenna confirmed that was his understanding as well.

[4] Sometimes sentence indications are expressed as an indication of the appropriate starting point but unless they are expressly referred to in that way, at the end of the day the important point from an accused’s position is the end sentence. That is what I took the Judge’s notes to refer to in this case. On that basis nothing arises out of the point Ms Tarrant properly drew the Court’s attention to.

[5] The appeal against sentence is advanced on the following grounds.:

first, having regard to the Court of Appeal decision in R v Harris[1] and the three bands referred to there, the starting point for the assault with intent to injure in this case of two years four months, even taking account of the
[1] R v Harris [2008] NZCA 528.
appellant’s poor past history, was excessive;

that the Judge should have given a more substantial credit for the guilty plea.

Counsel estimate the credit given was less than 15 per cent; and

the four months imposed for the breach of release conditions was, in the circumstances itself excessive, and particularly when applied cumulatively to
the sentence for the assaults.

[6] Ms Tarrant submitted that whilst perhaps stern, the sentence for the assault with intent to injure and the other assault, was not manifestly excessive. Again while the four months for the breach of release conditions might be seen as stern, it was not manifestly excessive given the past history of the offender.

[7] The assaults in…

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 Bridger v Police

Details

AGLC: Bridger v Police [2012] NZHC 2429
Case: [2012] NZHC 2429
Decision Date: 19 September 2012

CaseChat Overview and Summary

The appeal in Bridger v Police was brought by the appellant, Tyson Zane Bridger, against his sentence imposed by Judge Tompkins. Bridger was sentenced to 28 months' imprisonment for charges including assault with intent to injure, common assault, and breach of Court release conditions. The appeal was against the sentence being manifestly excessive. The Court of Appeal decision in R v Harris was cited, which suggested three bands for sentencing injuring with intent to injure, with the starting point for serious injury being 18 months up to the maximum. The assault in this case was deemed serious but not supporting a starting point of two years four months. The Court found that an end sentence for the assaults of around 19 months would have been appropriate, with a credit for the guilty plea of around 20%. For the breach of release conditions, a sentence of between two to three months would have been appropriate. The appeal was allowed, and the sentence imposed in the District Court was quashed and replaced with a sentence of 19 months for injuring with intent, nine months for assault, and two months cumulative on the breach of release conditions, totaling 21 months' imprisonment.

The legal issues the Court was required to decide were whether the sentence imposed was manifestly excessive and if the Judge had gone outside the sentence indication he had previously given. The Court found that the sentence indication referred to the end sentence rather than the starting point, and therefore, nothing arose out of the point raised by counsel. The Court also found that the starting point for the assault with intent to injure in this case was excessive, and the Judge should have given a more substantial credit for the guilty plea. The four months imposed for the breach of release conditions was also deemed excessive, particularly when applied cumulatively to the sentence for the assaults.

The Court's reasoning and outcome were based on a review of the Court of Appeal authorities and the circumstances of the offending. The Court found that the assault with intent to injure, even taken with the assault on the second complainant, could not support a starting point of two years four months including the appellant's personal circumstances. The Court also found that something more than 14 to 15 per cent allowed by the Judge was required for the guilty plea. The Court concluded that an overall sentence of 21 months would be appropriate for the offending in this case, and the sentence imposed of 28 months was manifestly excessive.

Orders