(a)one offence of assault with a weapon and one offence of assault on a person in a family relationship, which carry maximum penalties of five years and two years’ imprisonment, respectively;1

(b)nine offences of breaching a protection order, two by family violence and seven by unauthorised contact, the maximum penalty for each of which is three years’ imprisonment;2 and

(c)one offence of resisting arrest and one offence of breach of release conditions, which carry maximum penalties of three months and one year’s imprisonment respectively.3

[2] These offences all arose out of interactions between Mr Carroll and his then partner, with whom he had been in a relationship for many years and has a son:

(a)Around 6 am on 9 August 2022, Mr Carroll visited, woke and tried to kiss the complainant who was in bed with their son. She told him she did not want to be in a relationship anymore. He punched her twice, hard, in the back of the head and stabbed her on the top of her head with his car keys, causing her head to bleed.

(b)Around 9.40 am the same day, Mr Caroll returned and blocked the complainant’s car in the driveway with his, while she was trying to leave the address. He punched her doors and windows and tried to pull the windows down to gain access. He fled when she phoned 111 and drove away. He phoned the complainant constantly, making comments such as he was “going to chuck her in the boot, rub shit all over her, and take her out, with him”.

1      Crimes Act 1961, ss 194A and 202C.
2      Family Violence Act 2018, ss 90(a) and 112.
3      Summary Offences Act, 1981, s 23; and Parole Act 2002, s 71.

(c)On 11 August 2022, Mr Carroll sent an abusive text to the victim around 2 am, came to the address, and tried to open a window to gain entry. He abused and threatened her. She activated a family safety alarm and he fled. He continued to text and phone her throughout the day, including asking her to come outside for sex.

(d)On the afternoon of 13 August 2022, the complainant arranged for Mr Carroll to come over to discuss her being pregnant to him again. He failed to meet her at the agreed time and she told him not to come to her house. At 3 am the following morning, he broke into her house while she was asleep. She activated the family…

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 Carroll v Police

Details

AGLC: Carroll v Police [2023] NZHC 3293
Case: [2023] NZHC 3293
Decision Date: 21 November 2023

CaseChat Overview and Summary

Jermhal Mathew Carroll appeals his sentence of three years and four months’ imprisonment for multiple offences of assault, breaching a protection order, resisting arrest, and breaching release conditions. The respondent, New Zealand Police, opposes the appeal. The court must determine whether the sentence imposed by the District Court was within the available range or if there was a material error warranting a different sentence. The starting point and uplift for the sentence are the primary issues. The appellant argues that the starting point should have been three years' imprisonment for the totality of the offending. The respondent contends that the four-year sentence, which includes an 18-month uplift for the breaches of the protection order, is within the available range. The court finds that the starting point for the 9 August 2022 offending was appropriately set at two and a half years' imprisonment, and the 18-month uplift for the breaches of the protection order was justified due to the seriousness of the additional offending. The court concludes that the sentence imposed was within the available range and not manifestly excessive. The appeal is dismissed.

Orders