Cummings v Police - [2013] NZHC 1830

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000026 [2013] NZHC 1830

BETWEEN KEVIN NATHAN CUMMINGS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 19 July 2013 (by audio visual link from Invercargill) Appearances: G S Williamson for Appellant
R W Donnelly for Respondent

Judgment: 23 July 2013

JUDGMENT OF D GENDALL J

[1] The appellant appeals against an effective sentence of 19 months imprisonment imposed upon him on 18 June 2013 in the District Court at Invercargill for the following offences:

(a) Possession of a firearm without a licence pursuant to s 20(1) of the

Arms Act 1983;

(b) Male assaults female pursuant to s 194(b) of the Crimes Act 1961; (c) Threatening to kill pursuant to s 306 of the Crimes Act 1961;
(d) Resisting police pursuant to s 23(a) of the Summary Offences Act

1981; and

(e) Remittance of just over $3100 of fines – one month’s substituted

sentence imposed.

CUMMINGS v NEW ZEALAND POLICE [2013] NZHC 1830 [23 July 2013]

[2] The basis of the appeal is that a sentence of home detention should have been substituted.

Factual background

[3] The charges in question arose out of incidents at the appellant’s home on

11 February 2013. The appellant has three children aged twelve, eight and four years. His sister-in-law, and her children aged four and three years, were at the address at the time. The appellant had been drinking spirits and was highly intoxicated by about 2 a.m. when the incidents occurred.

[4] An argument apparently developed between the defendant, his wife, and sister-in-law. The defendant ordered his wife out of the room and she went to a bedroom. The defendant then stood over his sister-in-law and punched her in the head, connecting with her forehead, and then punched her a second time. This resulted in the sister-in-law receiving a swollen left eye. She then ran into a bedroom, grabbed her young children and escaped from the house by jumping out a window.

[5] The appellant then put a BB pistol down his pants and walked after her, yelling at her to come back. She did not. He then returned to the house and ordered his wife to lock the back door. She was clearly terrified about the appellant’s behaviour and left the address. There was no time for her to take the three children who remained in the house.

[6] The police were called and spoke with the appellant’s wife. He then rang his wife’s phone, which a police officer answered. When the appellant was told his wife would not be speaking to him, he stated that “If you don’t put her on now, I’m going to start killing everyone in the house”. The only persons in the house at the time were the appellant and his three children.

[7] As a consequence of this behaviour the Armed Offenders Squad was called out. The accused did come out of the house but was unco-operative with instructions and, as a result, pepper spray was used to effect…

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.

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Details

Case: [2013] NZHC 1830
Decision Date: 23 July 2013

CaseChat Overview and Summary

The appellant, Kevin Nathan Cummings, appeals against a sentence of 19 months imprisonment imposed by the District Court at Invercargill on 18 June 2013, for possession of a firearm without a licence, male assaults female, threatening to kill, resisting police, and remittance of fines. The appeal argues that a sentence of home detention should have been imposed instead of imprisonment. The legal issues in the appeal revolve around whether the District Court erred in not substituting home detention for imprisonment, whether it failed to consider the least restrictive sentence, and if it took into account irrelevant prior breaches of community-based sentencing.

The court examined the Sentencing Act 2002, which sets out principles for sentencing, including imposing the least restrictive outcome appropriate in the circumstances, taking into account the gravity of the offending, and considering the offender's personal and family circumstances. The court also noted that imprisonment can only be imposed if the purposes of sentencing cannot be achieved by any other sentence and no other sentence would be consistent with the principles of sentencing. The court found that the appellant's extensive criminal history, significant number of previous convictions for violence, and breaches of court sentences weighed against home detention. Furthermore, the seriousness of the offending, including domestic violence and threats to kill the appellant's children, supported the District Court's decision to impose imprisonment.

The court concluded that the District Court did not err in refusing to impose home detention instead of imprisonment. The appeal was therefore dismissed, and the original sentence of 19 months imprisonment was upheld.

Orders