De Silva v Police - [2019] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0400

[2019] NZHC 195

BETWEEN
SCOTT DE SILVA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 February 2019

Appearances:

C Newton for the appellant H Watts for the respondent

Judgment:

18 February 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Friendship Chambers, Manukau Kayes Fletcher Walker, Manukau

DE SILVA v NEW ZEALAND POLICE [2019] NZHC 195 [18 February 2019]

Introduction

[1] Scott De Silva appeals his sentence of 13 months’ imprisonment imposed by Judge G A Fraser in the District Court at Manukau on 16 November 2018.1 Mr De Silva was convicted on one charge of male assaults female.2 Mr De Silva’s counsel, Colleen Newton, contends the sentence “border[s] on being” manifestly excessive. She says the Judge erred in adopting too high a starting point; failing to give sufficient credit for the guilty plea; and failing to consider an electronically monitored sentence.

Approach on appeal

[2] I must allow the appeal only if satisfied there is an error in the sentence imposed, and a different sentence should be imposed.3 Otherwise, I must dismiss the appeal.4 The measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in the Court’s approach to sentence appeals.5 That is to be determined by reference to the final sentence, not the route adopted to reach it.6

Offending

[3] In the morning of 18 September 2016, the victim – then in a relationship with Mr De Silva for some 14 years – arrived home to find Mr De Silva drunk and asleep in his daughter’s bed. The daughter was not present. The victim was angered by Mr De Silva’s intoxication, and told him to leave once he had finished sleeping. An argument ensued. Rising from the bed, Mr De Silva grabbed the victim’s hair before punching her twice in the head. When he let her go, she demanded he leave the house. He did not.

[4] She ran upstairs to call the police. Mr De Silva followed later, yelling at the victim. After talking to the police, she followed him back downstairs. There, he punched her three times in the face, hitting her once in the eye. He then violently shook her – described in the accepted summary of facts as a ‘rag-dolling’ – before picking

1      New Zealand Police v De Silva [2018] NZDC 23776.
2      Crimes Act 1961, s 194(b). Maximum sentence is two years’ imprisonment.
3      Criminal Procedure Act 2011, s 250(2).
4      Criminal Procedure Act 2011, s 250(3).
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].
6      Ripia v R [2011] NZCA 101 at [15].

her up by the hair. The victim was scared, crying and pleading with Mr De Silva to stop. He let her go briefly, before kneeling on her stomach, causing breathing difficulties. Let go again, she ran upstairs and awaited police arrival. She suffered swelling, tenderness, and facial…

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 De Silva v Police

Details

AGLC: De Silva v Police [2019] NZHC 195
Case: [2019] NZHC 195
Decision Date: 18 February 2019

CaseChat Overview and Summary

In De Silva v New Zealand Police, Scott De Silva appealed his sentence of 13 months’ imprisonment for male assaults female. The case was heard in the High Court of New Zealand Auckland Registry. De Silva was convicted for assaulting a female, his partner of 14 years, on 18 September 2016. The court had to decide whether the sentence was manifestly excessive, as argued by De Silva’s counsel, Colleen Newton. The appeal was based on the argument that the sentence was too high, the Judge did not sufficiently credit De Silva’s guilty plea, and did not consider an electronically monitored sentence. The court’s reasoning was that the Judge had appropriately considered the aggravating factors of the offence, including the severity of the attack, the harm sustained, the offender’s previous convictions, and his failure to cooperate with rehabilitation programmes. The court found that the sentence was not manifestly excessive and dismissed the appeal.

Orders