Carr v Police - [2018] NZHC 2443

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-21 [2018] NZHC 2443

BETWEEN
DENNIS PAUL CARR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2018

Appearances:

W R Hawkins for Appellant
C R Stuart for Respondent

Judgment:

18 September 2018

JUDGMENT OF GRICE J

(Appeal against sentence – imposition of a protection order)

[1] Mr Carr was sentenced on one charge of assault with intent to injure his wife, Mrs Carr, on 16 May 2018 in the Hastings District Court.1 He was sentenced to two years of intensive supervision as well as a protection order pursuant to s 123B of the Sentencing Act 2002.

[2] Mr Carr appeals his sentence only as it relates to the imposition of the protection order. He says that Mrs Carr objected to the protection order being granted and therefore the sentence imposed was manifestly excessive. The only alteration asked for on appeal is that the protection order be removed.

[3] An affirmation has been filed by Mrs Carr and an affidavit by the police prosecutor involved at the hearing in relation to this matter.

1 NZ Police v Carr [2018] NZDC 15269.

CARR v NEW ZEALAND POLICE [2018] NZHC 2443 [18 January 2018]

Background

The offending

[4] The background is set out in the sentencing judgment. In summary, on the night of 12 March 2018, Mr Carr was in bed with his wife watching television.
Mr Carr became very angry and blamed Mrs Carr for winding him up. Without warning, Mr Carr punched Mrs Carr once very hard in the nose. This caused Mrs Carr’s glasses to break and cause a small cut on her nose.

[5] Mr Carr got out of bed, went around to her side, and yelled at Mrs Carr. He told her he was going to beat her up. Mr Carr then began punching Mrs Car numerous times about the head. She tried to protect herself by raising her hands and arms to cover her face.

[6] The blows continued until the family dog intervened and tried to prevent

Mr Carr from further assaulting Mrs Carr. Mr Carr was distracted by the dog, stated he was going to kill it and chased it out of the room.

[7] Mrs Carr called the police while Mr Carr was distracted by the dog. The police arrived and arrested Mr Carr.

[8] Mrs Carr had a very sore nose from the assault, and both of her eyes were swollen. She also had various bumps and bruises all over her head. Her arms and hands were also sore from trying to protect her face.

[9] Mr Carr’s explanation was that he had “gone into a black rage”.

What is a “black rage”?

[10] Dr De Silva, the Carr’s general practitioner wrote a report for the Court. His

23 March 2018 letter to Mr Carr’s lawyer sets out some of Mr Carr’s medical history that “…may help explain some of his recent behaviour/allegations…”. Dr De…

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 Carr v Police

Details

AGLC: Carr v Police [2018] NZHC 2443
Case: [2018] NZHC 2443
Decision Date: 18 September 2018

CaseChat Overview and Summary

The case of Carr v Police involves an appeal by Dennis Paul Carr against the sentence imposed by the Hastings District Court, specifically the imposition of a protection order. Carr was sentenced for assaulting his wife, Mrs Carr, and was subject to a protection order pursuant to section 123B of the Sentencing Act 2002. Carr's appeal solely challenges the imposition of the protection order, arguing that Mrs Carr objected to the order and that the sentence was manifestly excessive as a result. The central legal issue in this appeal is whether the victim, Mrs Carr, objected to the protection order being imposed as a condition of the sentence. The court must assess if the victim's statements or actions constituted an objection under section 123(2)(b) of the Sentencing Act.

The court examined the circumstances surrounding the imposition of the protection order, including the statements made by Mrs Carr and the police prosecutor during the sentencing hearing. Mrs Carr submitted an affirmation stating that she did not want a protection order and only agreed to it if Carr could return home. However, the court found that the police prosecutor had accurately conveyed to the Judge that Mrs Carr did not object to the protection order, provided she could still have contact with Carr. The court concluded that there was no error in the Judge's finding that Mrs Carr did not object to the protection order, considering the circumstances and the communication between the prosecutor and the victim. The appeal was dismissed as the Judge did not err in imposing the protection order.

Orders