Cavanagh v Police - [2012] NZHC 3539

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-56 [2012] NZHC 3539

BETWEEN GRAEME CAVANAGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2012

Appearances: S N Claver for the appellant
R W Donnelly for the respondent

Judgment: 17 December 2012

Reasons: 19 December 2012

REASONS FOR JUDGMENT OF CLIFFORD J

[1] The appellant, Graeme Cavanagh, pleaded guilty to one charge of injuring with intent to injure. Mr Cavanagh was sentenced in the District Court at Gore to seven months’ home detention, to undertake 200 hours community work and to pay emotional harm reparation to the victim of $1,500. Mr Cavanagh appeals against that sentence.

[2] I heard Mr Cavanagh’s appeal on Monday 17 December and gave a brief oral judgment. I allowed the appeal only to the extent of quashing the order of reparation, and otherwise dismissed the appeal. I said I would provide my reasons later. I now do so.

Facts

[3] The charge Mr Cavanagh faced arose out of an incident that occurred on

15 June 2012.

CAVANAGH v POLICE HC INV CRI-2012-425-56 [17 December 2012]

his victim worked for a weed spraying business that frequently took them away from home on work.

[5] At about 8.45pm on the evening of 15 June, Mr Cavanagh went, with two associates, to his victim’s home. Mr Cavanagh wanted to confront his victim regarding a work-related matter. Mr Cavanagh and his two associates entered the victim’s dwelling and cornered the victim in his lounge. To protect himself, the victim grappled with one of Mr Cavanagh’s associates. During that struggle he was punched a number of times and received a cut to his scalp that bled profusely. Mr Cavanagh then grabbed the victim by the shirt and lifted him off the ground and punched him in the face a number of times. The summary of facts to which Mr Cavanagh pleaded guilty records that, at one stage, one of Mr Cavanagh’s associates said “we have to leave”. To that Mr Cavanagh replied “No, he is going to get a hiding” and then continued to punch the victim in the face.

[6] The attack only stopped when the victim’s wife returned home and Mr Cavanagh and his associates left the address. Mr Cavanagh’s victim, a 49 year old man, received facial bruising and swelling to both eyes, a cut to his scalp and bruising to the right side of his jaw. The effect of the assault has caused ongoing medical and psychological problems including bad headaches, post traumatic stress syndrome, lack of sleep and delayed concussion. Mr Cavanagh’s victim has also suffered psychologically, has lost confidence and finds it difficult to go outdoors.

[7] Mr Cavanagh is 52 years old. He has a lengthy criminal and traffic history including a number of assault and other disorder charges. It is, however, important to note that the last entry in that lengthy history is in April 1999, an excess breath alcohol charge. No non-traffic offending has been recorded since 1993.

The Judge’s sentencing…

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 Cavanagh v Police

Details

AGLC: Cavanagh v Police [2012] NZHC 3539
Case: [2012] NZHC 3539
Decision Date: 17 December 2012

CaseChat Overview and Summary

Graeme Cavanagh appealed against his sentence, imposed by the District Court, for injuring with intent to injure. Mr Cavanagh had pleaded guilty to the charge and was sentenced to seven months' home detention, 200 hours community work, and emotional harm reparation of $1,500. The appeal was heard by Clifford J. The appeal was allowed in part, with the reparation order being quashed, while the rest of the sentence was affirmed. The court noted that the offender's criminal history, though extensive, had not seen any non-traffic related offences since 1993. The court considered the offence to be moderately serious injuring with intent to injure, which justified the starting point sentence of two years and four months. The court found no error in the Judge's approach to home detention, noting that a 12-month sentence would have been appropriate. However, the court quashed the reparation order, as the Judge had not sufficiently assessed the offender's financial situation to be confident that the reparation could be paid.

The offender's community work and reparation orders were not deemed excessive, as the court considered them to be a reasonable alternative to some of the home detention period. The court also dismissed the submission that the Judge had made reference to undisclosed matters, as the Judge's comments were not material to the sentence imposed. Consequently, the sentence of home detention will resume, subject to appropriate arrangements being made by the Department of Corrections.

Orders