Burgess v Police HC Dunedin CRI-2011-412-000035

[2011] NZHC 1405

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-412-000035

CRI-2011-412-000036

DARRYL BRIAN BURGESS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 October 2011

Appearances: N Rayner for Appellant

R P Bates for Respondent

Judgment:      12 October 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a sentence of four months imprisonment for two assaults and breaching a protection order.   The appellant had pleaded guilty to all charges which involved the same victim.  He is 24 years of age.

[2]      In 2009 the appellant was convicted of behaving threateningly and ordered to come up for sentence if called on.  Later that year he was sentenced to community work  for cultivating cannabis.   When  that  order was  breached  in  2010  he was convicted and discharged.

[3]      For approximately four years the appellant has been in a relationship with the complainant.  In February 2011 they were both convicted of assaulting each other.

The incident involved mutual violence with the appellant  ultimately gaining the

BURGESS V NEW ZEALAND POLICE HC DUN CRI-2011-412-000035 12 October 2011

upper hand.  Judge Coyle imposed suspended sentences on both the appellant and his partner and also made a protection order in favour of the appellant’s partner.   In addition the appellant was ordered to undertake a Stopping Violence programme.

[4]      At 1:30 a.m. on 6 August 2011 there was a further incident involving the appellant and complainant.  This occurred at the appellant’s address which suggests that the complainant must have been in the appellant’s company of her own volition. There was an argument about sleeping arrangements and the appellant pushed the complainant, causing her to fall onto the floor.   The police were called.   The complainant did not receive any injuries.

[5]      As  a  result  of  this  incident  the  appellant  had  to  be  re-sentenced  on  the previous assault as well as the current assault and breach of protection order.  For some reason he declined to co-operate in the assessment whether a community based sentence  might  be  available.    Supervision  was  recommended  by  the  probation officer.

[6]     On sentencing Judge Crosbie understandably expressed concern that the appellant had ruled out a community based sentence.   It is clear from the Judge’s sentencing  remarks  that  he  would  have  favoured  an  electronically  monitored sentence had that option been available.

[7]      Aggravating features identified by the Judge were that the appellant was subject to a deferred sentence, the same victim was involved, a protection order had been breached and the appellant did not display any remorse.   It was the Judge’s view that a deterrent sentence was required and that the starting point was imprisonment.

[8]      Having  concluded  that  the  appellant  “blew  it”  the  Judge  considered  the totality principal.   He did not consider that anything short of imprisonment could meet the purposes and principles of the Sentencing Act and sentenced the appellant to four months imprisonment (concurrent) on each assault.   On the breach of the protection order he sentenced the appellant to a concurrent term of two months

imprisonment.  There was no specific reference to the starting point or any discount for the guilty plea.

This appeal

[9]      Mr Rayner submitted that there are two primary issues:   first, the type of sentence, secondly, the duration.  His submission is that the appellant should have been sentenced to a community based sentence rather than imprisonment.  He notes that up to 400 hours community work could have been imposed.   Given the recommendation of the probation officer, he submitted that there should have been a community based sentence.

[10]     During the course of his submissions Mr Rayner emphasised a number of matters:   the satisfactory participation of the appellant in the Stopping Violence programme (attendance at 21 of the total 25 sessions and a willingness to repeat that programme); both assaults were at a low level; options short of imprisonment were available and could have still achieved deterrence; the sentence imposed and its duration  did  not  represent  the least  restrictive  option  in  terms  of  s  8(g) of  the Sentencing Act 2002.

[11]     In  response  Mr  Bates  suggested  that  the  appellant  had  effectively  “shot himself in the foot” by ruling out home detention.  He suggested that under those circumstances the sentence of four months imprisonment was the minimum that the Judge could have realistically imposed, and that this Court should not tinker with that sentence.

Discussion

[12]     To a large extent the appellant brought the sentence of imprisonment on himself by ruling out the possibility of a monitored sentence.   Clearly the Judge would have favoured a community based sentence had it been available.  Once the option of a community based sentence had been ruled out the Judge did not err in principle by deciding that a sentence of imprisonment was appropriate.  This reflects two primary factors.   Firstly, that the second assault occurred while he was on a

suspended sentence in relation to the first assault and, secondly,  the absence of remorse.

[13]     The next issue is whether the sentence of four months imprisonment was manifestly excessive. A number of matters need to be taken into account.

[14]     First, the gravity of the two assaults.  Both were at the lower end of the scale. The first reflected mutual violence and the suspended sentence indicates the relative seriousness of the offending.   The second did not involve any injury to the complainant and it is probably significant that the complainant declined to provide a victim impact statement. That said, neither assault should be condoned.

[15]     Secondly, the circumstances surrounding the breach of the protection order. Again breaches of protection orders are not to be condoned.  But the reality seems to be that the complainant was at the appellant’s home, presumably of her own volition. Had the assault not occurred it is probably unlikely that there would have been any complaint to the police about the breach of the protection order.

[16]     Thirdly,  the  appellant’s  background.    His  previous  history  is  very  brief. Before the first assault he had no previous convictions for actual violence, only a conviction for threatening behaviour which led to a suspended sentence.  He had not previously served any sentences of imprisonment.  He is also entitled to credit for having served the Stopping Violence programme, although it is unfortunate that he did not learn more from it.

[17]     Finally,  there  is  the  question  of  the  credit  for  the  guilty  plea.    If  the appropriate starting point was four months imprisonment then he was entitled to some credit for the guilty pleas at the first available opportunity.   It is not clear whether any credit was allowed.

Conclusions

[18]     Effectively, the appellant has now served the equivalent of a sentence of two and a half months imprisonment.   Taking all the circumstances into account and

applying the least restrictive outcome requirement in s 8(g) of the Sentencing Act it seems to me that justice would be served if the appellant was released from prison now or in the near future.   Judging from what Mr Rayner said, the deterrence intended by the Judge has been achieved.

[19]     The   appeal   is   allowed.      The   concurrent   sentences   of   four   months imprisonment for the assaults are quashed and replaced with concurrent sentences of two and a half months imprisonment.  The sentence of two months imprisonment for breaching the protection order and the conditions imposed will stand.   This will probably mean that the appellant will now be eligible for immediate release, but that will be for the prison authorities.

Solicitors:

Noel Rayner Barrister, 3 Haddon Place, Dunedin 9016

Wilkinson Adams, PO Box 803, Dunedin 9054