Cunningham v R - [2019] NZCA 622

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA130/2019
[2019] NZCA 622

BETWEEN	NIGEL JOHN CUNNINGHAM Appellant
AND	THE QUEEN Respondent

Hearing:	17 October 2019
Court:	Miller, Simon France and Hinton JJ
Counsel:	L M Drummond for Appellant M N Zarifeh and SRDD Bicknell Young for Respondent
Judgment:	5 December 2019 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

Miller and Hinton JJ [1]
Simon France J (Dissenting) [38]

MILLER AND HINTON JJ

(Given by Hinton J)

Mr Cunningham was convicted following a jury trial in the District Court at Greymouth of three charges of male assaults female and two of assault with intent to injure. He was sentenced by Judge O’Driscoll on 28 February 2019 to three and a half years’ imprisonment.[1] On six other charges he was either acquitted or discharged.
[1]R v Cunningham [2019] NZDC 3955 [Sentencing notes].
Mr Cunningham initially appealed against conviction and sentence. However his counsel confirmed at the hearing that his conviction appeal was not proceeding, leaving the appeal against sentence only.

The sentencing decision appealed against

The five charges on which Mr Cunningham was convicted all relate to assaults against his then partner.
Judge O’Driscoll took charge 5 as the lead charge. This was a charge of assault with intent to injure. On 2 April 2018 Mr Cunningham strangled his partner using a dog‑chain. The complainant said that she could not breathe; she felt her eyes twitching and became dizzy. The identified aggravating features were assault to the head and neck, use of a dog chain-for strangulation, the intimate relationship with the complainant and her clear vulnerability including suffering from serious mental health issues.[2] The Judge adopted a starting point of two years’ imprisonment,[3] declining to take into account new laws involving strangulation which were introduced after the offending took place.[4]
[2]At [11].
[3]At [26].
[4]See Crimes Act 1961, s 189A.
The Judge then uplifted the starting point by 12 months on charge 1, a representative charge of male assaults female.[5] That charge involved Mr Cunningham punching the complainant in the head and neck over a six month period between 1 October 2017 and 5 April 2018. The Judge said it was difficult to assess the nature and frequency of the assaults on the evidence. The complainant’s evidence was that the assaults occurred on a weekly basis. The Judge said that it was clear that the assaults were “regular and frequent”.[6]
[5]Sentencing notes, above n 1, at [26].
[6]At [10].
The Judge then applied a further 12 month uplift to reflect the remaining three charges (4, 9 and 11).[7] Charge 4 was a charge of male assaults female, involving Mr Cunningham throwing the complainant out of the door of the home onto a concrete floor. This occurred on a date between 1 January 2018 and 28 February 2018. Charge 9 (assault with intent to injure) involved Mr Cunningham punching the complainant in the eye on 4 April 2018…

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 Cunningham v R

Details

AGLC: Cunningham v R [2019] NZCA 622
Case: [2019] NZCA 622
Decision Date: 5 December 2019 at 3.00 pm

CaseChat Overview and Summary

Nigel John Cunningham appeals against his sentence following a conviction for multiple charges of assault against his partner. The appeal was heard by the Court of Appeal of New Zealand, with Miller, Simon France, and Hinton JJ delivering the judgment. The primary issue in this appeal was whether the sentence imposed by Judge O’Driscoll was manifestly excessive. The appellant argued that the starting point for the lead charge was excessive, one or both uplifts were too high, or the discount for restrictive electronically monitored (EM) bail and remorse was too low.

The Court of Appeal began by considering the starting point for the lead charge of assault with intent to injure. The Court held that a starting point of two years’ imprisonment was appropriate, given the nature of the assault involving strangulation with a dog-chain. The Court then assessed the uplifts for the three charges and the representative charge. While the Court agreed that the 12-month uplift for the representative charge was high, it found the six-month discount for restrictive EM bail and remorse to be generous. The Court further noted that some deduction for totality was already built into the uplifts as assessed. Ultimately, the Court found the sentence of three and a half years’ imprisonment to be stern but not manifestly excessive.

Simon France J dissented from the majority decision, arguing that each link in the chain was at least towards the top of the range available for the conduct if assessed as a stand-alone offence. He disagreed that a totality adjustment was not required and would have reduced the starting point by six months for this aspect. He also found the discount for time on EM bail to be too high, and would not give the appellant the benefit of the full reduction. Although it was a modest reduction, Simon France J would have allowed the appeal and reduced the sentence by four months.

Ultimately, the appeal against sentence was dismissed, and the original sentence of three and a half years’ imprisonment was upheld.

Orders