Brown v Police HC Napier CRI 2010-441-27

[2010] NZHC 1438

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-27

BETWEEN  CHERISH HAPIRA BROWN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 August 2010

Counsel:         A Malik for Appellant

J D Lucas for Respondent

Judgment:      18 August 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms Brown appeals against a sentence of 12 months imprisonment imposed on one charge of assault with intent to injure, contending that the starting point was too high and imprisonment was not the least restrictive outcome appropriate to the case. She contends that community work with supervision was the appropriate sentence.

[2]      On 15 April 2010, Ms Brown, her co-offender Ms White, and Ms Brown’s female flatmate, the victim, were drinking when Ms Brown and the victim had an argument.  Ms Brown then pulled the victim’s hair and punched her in the head three or four times before pulling the victim forward by her hair.  As she did so, Ms White kicked the victim in the face, causing her to fall to the floor, and then kicked the victim to the head, ribs and back repeatedly.  An associate intervened, but Ms Brown stomped on the victim’s forehead and Ms White kicked the victim another three

times.  They then left the scene.

BROWN V NEW ZEALAND POLICE HC NAP CRI 2010-441-27  18 August 2010

[3]      The victim was rendered unconscious.  Photographs depict a severe beating. She suffered extensive bruising and swelling to the right side of her face and spent two days in hospital.

[4]      Ms Brown pleaded guilty on 26 May.  She has no previous convictions.  The pre-sentence report recorded that she is 24, with no permanent address;  she had been living at a women’s refuge at the time.   She was working in orchards.   She had suffered an abusive childhood and has a poor relationship with her parents.  While her educational achievement is poor.   She is being treated for depression.   She accepted  most  of  the  responsibility  for  the  assault,  but  shifted  some  of  it  to Ms White.  Her abuse of alcohol was a contributing factor to the offending.  She was assessed as having a moderate degree of remorse, and her reoffending risk was moderate if she addressed her rehabilitative needs.

[5]      A home detention report was called for, but notwithstanding several remands, an address could not be found.   The occupants of the address that she eventually nominated did not consent to her serving an electronically monitored sentence there. Imprisonment was recommended.

[6]      The  Judge  recounted  the  facts,  noting  that  the  victim  had  been  left unconscious and defenceless, bleeding on the floor.   Ms White’s role was more violent than that of Ms Brown, but both were acting in concert.  There was no proper basis to distinguish between the two so far as the starting point went.   The facts would readily support a charge of injuring with intent to injure, which carries a five- year maximum sentence.   This was a very serious case of its kind.   He adopted a starting point of two years imprisonment.  He acknowledged that he must seek the least restrictive outcome, but that did not require him to offer an indulgent response to violent offending;  denunciation and deterrence may compel imprisonment.

[7]      In mitigation, the Judge accepted that the offenders pleaded guilty at a very early stage.  The plea was not entered at once, but she did plead as soon as the charge was reduced.   He allowed 50 per cent for Ms Brown’s plea and her very good previous character, resulting in the end sentence of 12 months imprisonment.

[8]      On appeal, as I have said, counsel contends that a sentence of community work with supervision was appropriate.  He points to an element of provocation (the summary of facts refers to an argument), her insight and remorse, her enrolment in a domestic violence course, and her depression exacerbated by alcohol.  The latter of course is not a mitigating factor.

[9]      I have no hesitation in concluding that the Judge was right to impose the sentence he did, for the reasons he gave.   This was serious offending, involving a sustained and concerted attack to the head.  It risked causing grave injury, and it did cause moderately serious injury.  There may have been an element of provocation, but if so her reaction was so extreme that no allowance can be made for it.   The offenders were fortunate that they did not face a more serious charge.  And it is not necessary to scale back the starting point on a mathematical basis to reflect the lesser charge.   Following R v Harris, an end sentence of up to two years imprisonment might have been imposed.  On these facts it cannot possibly be said that a starting point of two years was manifestly excessive.   Nor do I accept that the Judge was wrong to adopt the same starting point for both;   it was a concerted attack and Ms Brown stomped on the victim’s head after Ms White’s kick to the face.   The discount given for mitigating factors fully reflected all that could be said for her.

[10]     Given  Ms  Brown’s  history  and  the  mitigating  factors,  including  her unfortunate background, this was a proper case for home detention.  However, it is not the case that community work was an appropriate sentence.  I acknowledge that there  are  cases  in  which  sentencing  Judges  have  imposed  community-based sentences for violent offending, but it cannot be said that the Judge was wrong to take the view that he did.

[11]     It  appears that Ms  Brown still does not have a home detention address. Nonetheless, as I have said, this was a proper case for home detention and I consider that she should have the opportunity to seek it if she can find a suitable address.

[12]     For that reason I will confirm the sentence but grant leave under s 80K of the Sentencing Act for Ms Brown to apply for cancellation of her sentence and substitution of home detention.

[13]     To that extent only the appeal is allowed.

Miller J

Solicitors:

Elvidge & Partners, Napier for Respondent