C v Police HC Nelson Cri-2010-442-18

[2010] NZHC 1471

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2010-442-000018

C

v

NEW ZEALAND POLICE

Hearing:         19 August 2010

Appearances: Mr Roose for the appellant

Ms Bonifant for the respondent

Judgment:      20 August 2010

JUDGMENT OF MALLON J

[1]      Mrs C   lives  in  flat  no  3  in  a  block  of  flats.    There  is  a  narrow walkway out the back of the flat.  Some of those in the flats use the walkway as a common area.   They use the walkway to get to one another’s flats.   At times, children from the flats bounce basketballs and throw rugby balls around in this area. Mrs C   objects to this because it gives her no privacy and little space of her own.  She believes that the walkway is there for use in emergencies, such as if there is a fire.

[2]      One morning Mrs C   was hanging out her washing out the back of her flat.  Mr Stott, who lives in flat no 5, took the route through the back walkway on his way to visit a friend in flat no 1.   Mrs C   objected to this and assaulted Mr Stott by pushing his chest with her open hands and punching him twice in the face.   Mr Stott called out to his partner, Ms Aitken, and she came running over carrying their little baby.  Mrs C   assaulted Ms Aitken as well by grabbing her

arm and twisting it up behind her and hitting her to the back of the head.

C V NEW ZEALAND POLICE HC NEL CRI-2010-442-000018  20 August 2010

[3]      As a result of these events, following a defended hearing in the District Court, Mrs C   was convicted on two counts of common assault.   She was sentenced to 80 hours community work and ordered to pay witnesses expenses of

$27 to each of Mr Scott and Ms Aitken.  Mrs C   appeals against her sentence on the grounds that it is manifestly excessive.  It is submitted on her behalf that the Judge failed to take into account Mrs C  ’s difficulty with having her privacy invaded by her neighbours regularly using the common walkway.   When this is taken into account it is said that the minimum 40 hours community work should have been imposed.   (It is accepted that a fine was not available as Mrs C   does not have the means to pay a fine.)

[4]      I agree that the circumstances which caused Mrs C   to act as she did are relevant.  The Judge did not expressly refer to this in sentencing Mrs C  , although he was aware that this was Mrs C  ’s concern (having heard the evidence that was  given).   However, taking these circumstances into account,  I consider that the 80 hours community work, while at the higher end of the available range, was not manifestly excessive.  I say this because:

a)        the assault was on two people;

b)        in each case the assault involved more than one blow;

c)        Mrs C   showed no regard for the safety of the baby being held by Ms Aitken;

d)       Mrs C   did not plead guilty or otherwise indicate remorse. [5]           The appeal is dismissed.

Mallon J

Solicitors:

H Roose, Nelson, ph: 03 548 3460, fax: [phone], [email protected]

J Bonifant, Pitt & Moore, Nelson, ph: 03 548 8349, fax: [phone], [email protected]