Carson v Police - [2015] NZHC 2603

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-58 [2015] NZHC 2603

BETWEEN
NEVILLE GLYNN CARSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 October 2015

Counsel:

G A M Schweizer for Appellant
M S Jenkins for Respondent

Judgment:

22 October 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: GAM Schweizer (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

CARSON v POLICE [2015] NZHC 2603 [22 October 2015]

Introduction

[1] On 12 October 2015 in the District Court at Rotorua, Judge MA MacKenzie sentenced Mr Carson to 10 months’ imprisonment.1 Mr Carson had pleaded guilty to one charge of assault with intent to injure and one charge of threatening to cause grievous bodily harm. The former charge carries a maximum penalty of three years’ imprisonment and the latter charge carries a maximum penalty of seven years’ imprisonment.

[2] Mr Carson appeals his sentence of imprisonment. He does not seek to challenge the term of the imprisonment. He accepts the end sentence of 10 months’ imprisonment as being appropriate and within range. I agree.2 The sole ground of appeal relates to the Judge’s refusal to impose a sentence of home detention. Mr Carson submits that the Judge erred in deciding that imprisonment was required having regard to the principles and purposes of sentencing contained in the Sentencing Act 2002.

Facts

[3] The first victim, Mr Waru is a self-employed tiler who has been disabled for the past 25 years after having his right leg amputated as a result of an accident. Mr Waru uses crutches to assist him in his day-to-day activities. Mr Carson had worked for Mr Waru part-time for a few months until recently when his employment was terminated. Mr Carson had a grievance against Mr Waru for the termination of his employment.

[4] On 25 May 2015 at around 1:20 pm, Mr Carson drove to Mr Waru’s home address. He approached Mr Waru on his driveway and a verbal altercation took place relating to the termination of Mr Carson’s employment. Mr Carson pushed Mr Waru in his chest causing him to lose his balance and to fall to the ground. Mr Carson then picked up one of Mr Waru’s crutches and struck him four times to the upper body. Mr Waru raised his arms defensively and Mr Carson continued to
strike him with the crutch, landing approximately another nine blows. Mr Carson

1 Police v Carson [2015] NZDC 20534.
2 See Tamihana v R [2015] NZCA 169; R v Kahia & Ors [2015] NZHC 344; Yong Pan v Police
HC Auckland CRI 2005-404-325, 3 February 2006.

then threw the crutch at Mr Waru before leaving the property. The blows to Mr Waru were hard enough that they caused damage to parts of the steel constructed crutch.

[5] Mr Waru himself suffered significant bruising and was left shaken and concerned. Mr Carson lives nearby and for a time Mr Waru moved his family away because he was concerned for their safety.

[6] That same day, at around 2:30…

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 Carson v Police

Details

AGLC: Carson v Police [2015] NZHC 2603
Case: [2015] NZHC 2603
Decision Date: 22 October 2015

CaseChat Overview and Summary

The case of Carson v Police, heard in the High Court of New Zealand, concerns an appeal by Neville Glynn Carson against his sentence imposed by the District Court at Rotorua. Carson was sentenced to 10 months’ imprisonment for charges of assault with intent to injure and threatening to cause grievous bodily harm. Carson accepts the appropriateness of the imprisonment term but appeals against the refusal of home detention by Judge MacKenzie. The key issue in this appeal is whether the Judge erred in deciding that imprisonment was necessary, considering the principles and purposes of sentencing as outlined in the Sentencing Act 2002. The court assessed various sentencing purposes, including accountability, deterrence, denunciation, and rehabilitation, and concluded that while a sentence of home detention might be suitable in less severe cases, the nature of Carson's violent actions against a vulnerable victim necessitated a stronger deterrent and denunciation. However, new information about Carson's niece's suicide on the day of the offence and the fragile mental health of his daughter, which would be severely impacted by his imprisonment, led the court to determine that the sentence of imprisonment was disproportionately severe. Consequently, the High Court allowed Carson's appeal, quashed the 10 months’ imprisonment sentence, and substituted it with a sentence of five months’ home detention with standard and special conditions.

Orders