Cunnard v Police - [2019] NZHC 2944

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2019-476-000022

[2019] NZHC 2944

BETWEEN
BLAKE PAUL CUNNARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 October 2019

Appearances:

H V Bennett for the Appellant K C Beazley for the Respondent

Judgment:

12 November 2019

JUDGMENT OF NATION J

Introduction

[1] On 7 August 2019, Mr Cunnard was sentenced in the District Court on charges of impedes breathing, assault on person in family relationship and wilful damage. Judge Farish sentenced Mr Cunnard to five months’ home detention with special conditions to attend a non-violence programme, probation approved treatment in particular drug and alcohol treatment and non-association with the victim.

[2]Mr Cunnard appeals that sentence.

Facts

[3] Mr Cunnard was aged 32. In January 2019, he had been in a relationship with the victim for some months. She had two young children.

CUNNARD v POLICE [2019] NZHC 2944 [12 November 2019]

[4] The victim was at Mr Cunnard’s address. At 11.00 pm on 5 January 2019, she woke to him standing over her, holding her phone and yelling at her. He placed her in a headlock, causing her to lose consciousness. As she lay unconscious, he punched her several times in the head. When she tried to call the Police, Mr Cunnard pushed her hard, resulting in her falling backwards, hitting her head and elbow. He snatched her phone from her and threw it on the floor, smashing it. The victim was taken by ambulance to Timaru Hospital. She had bruises and swelling to her face and arms.

[5] Mr Cunnard was charged with impeding breathing, assault on person in a family relationship and wilful damage.

[6] Mr Cunnard sought and accepted a sentence indication by Judge Roberts on 1 April 2019 in the Timaru District Court. There, the Judge noted Mr Cunnard's low level of ability to comply with a community-based sentence. His Honour said the offending was committed against a backdrop where Mr Cunnard was already sentenced for other offending and he had not completed or engaged with that sentence.

[7] The Judge adopted a starting point of eight months' imprisonment. He gave an uplift of two months for the aggravating features of offending whilst subject to sentence. From that, he gave a discount of two months for an early guilty plea.

[8] His Honour indicated that the end sentence could be converted to either home detention or community detention (coupled with supervision and community work), depending on the recommendations set out in the pre-sentence report.

[9] Before sentencing, further charges were laid against Mr Cunnard in relation to the same complainant, relating to events arising on 20 April 2019. They were two charges of strangulation and assault on a person in family relationship. Mr Cunnard entered not guilty pleas and was awaiting a Judge-alone trial on the charges.

[10] On 5 August 2019, Mr Cunnard appeared in the Timaru District Court in front of Judge Farish on an opposed bail…

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 Cunnard v Police

Details

AGLC: Cunnard v Police [2019] NZHC 2944
Case: [2019] NZHC 2944
Decision Date: 12 November 2019

CaseChat Overview and Summary

Blake Paul Cunnard appeals his sentence imposed by Judge Farish in the Timaru District Court, which included home detention with special conditions of non-association with the victim, attendance at a non-violence programme, and participation in a treatment programme. The Crown accepts that the appeal is not frivolous. The legal issue is whether the special conditions of home detention were justified under the Sentencing Act 2002 and whether they breached Mr Cunnard's right to freedom of association under the New Zealand Bill of Rights Act 1990.

The High Court found that the special conditions were rationally connected to the purposes set out in the Sentencing Act 2002 and did not breach Mr Cunnard's right to freedom of association. The court considered the victim's statement that she had lied to the Police and wanted to continue her relationship with Mr Cunnard, but found that standard conditions alone would not adequately reduce the risk of reoffending against the victim. The non-association condition was necessary to reduce the likelihood of further offending by Mr Cunnard and assist in his rehabilitation. The court also noted that the non-association condition was not absolute and allowed for potential future contact between Mr Cunnard and the victim if approved by Corrections.

The appeal is dismissed, and the sentence imposed by Judge Farish is upheld. The final orders are that the appeal is dismissed, and the sentence imposed by Judge Farish on 7 August 2019 is confirmed.

Orders