D v Police HC Rotorua CRI 2007 470 28

[2007] NZHC 1157

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007 470 28

IN THE MATTER OF     an appeal against sentence

BETWEEN  D

Appellant

AND  POLICE Respondent

Hearing:         30 October 2007

Counsel:        G C McArthur for Appellant

Julie O'Brien for Crown

Judgment:      30 October 2007

[ORAL] JUDGMENT OF WILLIAMS J

Appeal   against   sentence   of   100   hours   Community   Work,   12   months’ Supervision, and attendance at anti-violence programmes as directed by the Probation Officer.

Appeal allowed by reducing to 50 hours Community Work.

Solicitors:

G C McArthur, Tauranga

Crown Solicitor, Tauranga

Copy for:

Judge A I M Tompkins, District Court.

D V POLICE HC ROT CRI 2007 470 28  30 October 2007

Introduction

[1]      At the conclusion of a defended hearing on 1 August 2007 of a charge of male assaults female, brought under the Crimes Act 1961 s 194 (b) the appellant, Mr D  , was convicted.   The Judge then imposed a sentence of 100 hours Community Work together with 12  months’ Supervision with special conditions requiring Mr D   to undertake Stopping Violence programmes or courses or counselling as directed including programmes or counselling dealing with the effect of violence or witnessing violence on young children – all as directed by the Probation Officer.

[2]      Mr D   appeals to this Court on the basis that the sentence imposed was manifestly excessive.

Facts

[3]      The facts of the matter are that the appellant and the complainant had been in a long term domestic relationship but it had come to an end.

[4]      There had been offspring as a result of the relationship.  The couple had lived together in a house which is in the appellant’s name and the complainant sent him a text message saying she was coming to the house in order to uplift her belongings. She turned up with her stepfather and a child.

[5]      Mr D   was sufficiently alarmed at the prospect of the complainant coming to the house that he telephoned the Police to seek assistance, first, when he received the text message and, second, when the complainant arrived at the property.

[6]      The assault took place within the house.   In fact, the Police case was that there were three assaults.  The first was in the bedroom where it is said the hysterical appellant grabbed the complainant, yelled at her to get out and took steps to evict her from the home by pushing her about the shoulders.   Personal property was taken from the house by the stepfather and when he exited the home to place the property

in  a  vehicle  the  appellant  locked  the  door  behind  him.     The  stepfather  was sufficiently alarmed to kick the glass in, in order to regain admission to the property. Whilst he was doing so, the Police case was that the appellant then pushed or forced the complainant against a wall and punched her in the stomach, wounding her.  His brother was present and it was he who intervened in order to stop the altercation going on at the time.

[7]      The Judge carefully reviewed the facts including the angry atmosphere in which the offence was said to have taken place.   He reached the view that the pushing against the wall and the claimed punching in the stomach were not proved to the criminal standard once he had assessed the credibility of the various witnesses. But he did reach the view that the placing of the arms around the shoulders in the bedroom was proved to the criminal standard in association with the appellant’s attempt to evict the complainant from the house.

[8]      The defences raised on Mr D  ’s behalf included defences available under the Crimes Act 1961 ss 55 and 56 but the Judge declined to accept those defences on the basis that he held that the assault had taken place and accordingly the defences were unavailable.

[9]      After carefully reviewing the evidence the Judge said :

[26]      Taking all those factors into account, I conclude that the assault in the bedroom by the grabbing of the shoulders and the trying to force the complainant out did occur.  The other two are not proved beyond reasonable doubt.  In those circumstances, the defendant is convicted.

[27]      Mr D  , having heard the evidence today and taken account of the submissions advanced by Mr McArthur but also taking account of a sequence of events which reflects little credit on yourself as well, you are convicted …

He then followed that with the imposition of the sentence.

[10]     Mr McArthur, who appeared for Mr D   in the District Court and on this appeal, submitted that the assault as found was minor, that it arose because of the appellant’s belief that he was entitled to do as he did in evicting the complainant from his house and suggested  that  100  hours Community Work  was manifestly

excessive in the circumstances.   He directed attention to a number of other cases

[R v Blair (CA69/94) 20 June 1994;  Sheen v Police (HC Auckland, CRI.2005 404

000034, 3 February 2006, Lang J;  Waetford v Police; (HC Wellington, CRI 2005

485 161, 13 December 2005, Gendall J;  and R v Rennie (CA281/91, 9 September

1991] where something less than Community Work was imposed.

[11]     For the Police, Mrs O’Brien accepted that the sentence imposed may have been at the top of the available range but pointed to a number of facts which she said justified the sentence.  In the first place, Mr D   had an earlier conviction for common  assault  -  although  it  was  10  years  before  and  met  only  with  a  fine. Secondly, Mrs O’Brien suggested that the Judge was no doubt concerned at the overall circumstances in which the assault occurred and it was with that in mind and the certainty that because of the child (or children??) these parties will need to be associated in some way for a long time to come and accordingly the Judge was concerned to ensure that the Supervision included the special programmes to which reference: has earlier been made.

[12]     She also made the point that the Judge was no doubt concerned by the fact that  the  appellant  locked  the  stepfather  out  of  the  house  whilst  the  incident continued.

[13]     Counsel have been of particular assistance in this case.   Mr McArthur has advanced everything that could be advanced on Mr D  ’s behalf but counsel also observed, when pressed by the Bench, that 100 hours Community Work was definitely towards the top of the range by comparison with other cases where what has been proved to have occurred is a push and shove in order to get somebody out of the home.

[14]     In those circumstances, the appropriate conclusion is that this was an incident which certainly justified a result more than a fine.   It was, after all, a Crime Act assault – male assaults female – not common assault.  The circumstances were tense. The parties had been and will continue to be in a relationship and it is appropriate that Mr D   undergo the programmes to which the Judge referred in order to lessen the chances of difficulties in the future.  In those circumstances, the appeal is

allowed to the extent of substituting an order for 50 hours Community Work for the

100  hours imposed  in the  District  Court.    Beyond  that,  however,  the  appeal  is dismissed.

…………………………..

WILLIAMS J.