Devery v Police - [2013] NZHC 264

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-61 [2013] NZHC 264

RICKY KONRAD DEVERY
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 February 2013

Appearances: K McHugh for the Appellant
E Higbee for the Respondent

Judgment: 20 February 2013

RESERVED JUDGMENT OF FOGARTY J

Introduction

[1] This is an appeal against sentence by the District Court at Invercargill (Judge M Turner). It is made difficult by reason of the distinction between gravity and culpability.1 It is a case where it is plainly wrong to apply a common presumption that a sentence can be reliably based on the degree of harm that was caused, on the assumption that there will be a congruence between the degree of harm and the culpability of the person who inflicted the assault. Section 8(a) is the first principle
of sentencing, it distinguishes gravity and culpability. Section 8(a) provides:

1 Section 8(a) of the Sentencing Act 2002.

DEVERY V NEW ZEALAND POLICE HC INV CRI-2012-425-61 [20 February 2013]

8 Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and

The assault

[2] The assault arose out of a road rage incident. The appellant was convicted for injuring with intent to injure, and sentenced to two years and eight months imprisonment. After a disputed facts hearing, he was sentenced on the following facts. He was the front seat passenger in a vehicle travelling along Herbert Street in Invercargill. It is unclear whether he had been drinking. While the car was in motion, he was leaning out the window, yelling and abusing motorists and anyone he saw. His vehicle came to a stop at the intersection of Yarrow Street and Queens Drive, as did the victim’s vehicle. The appellant got out of his vehicle and approached the victim, who also got out of his car. He attacked the victim. He punched the victim, with multiple blows to his head with a closed fist. On at least two or three occasions, he kicked the victim in the back. He returned to his vehicle and removed a “V” bottle from the car, approached the victim and struck him, either from the side or from behind, striking him about the head. There were at least two blows.

[3] The appellant was on a high that day. His partner was pregnant. The assault that I have just described was against a person who was unknown to him. It did not arise out of any prior dispute or relationship with the person.

[4] The victim sustained injuries. Initially, the victim thought his nose was broken, but it appears that that was not the case, although he still has a lump on it. He received a swollen black eye, which lasted about 10 days. He received cuts around his mouth, nose and eye area, including cuts inside his mouth. There were…

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 Devery v Police

Details

AGLC: Devery v Police [2013] NZHC 264
Case: [2013] NZHC 264
Decision Date: 20 February 2013

CaseChat Overview and Summary

Ricky Konrad Devery appealed against his sentence for injuring with intent to injure, following a road rage incident. The appeal was heard in the High Court of New Zealand at Invercargill. The primary legal issue was whether the District Court at Invercargill correctly assessed the culpability and gravity of the assault, and whether the resulting sentence was appropriate. The court considered whether the sentencing guidelines in R v Harris were correctly applied and if the sentence reflected both the harm caused and the offender's culpability.

The High Court found that while the District Court had correctly applied the sentencing guidelines, the classification of the injury as serious rather than moderate was debatable. The court emphasised the importance of distinguishing between the gravity of the harm and the culpability of the offender, as mandated by section 8(a) of the Sentencing Act 2002. It acknowledged that in cases of unprovoked, random violence against strangers, high culpability may warrant a severe sentence even if the harm caused is not of a high order. The High Court supported the District Court's final outcome but for slightly different reasons, affirming the importance of considering both the culpability and the social impact of the offending.

The appeal was dismissed, and the original sentence of two years and eight months imprisonment was upheld. The court's judgment underscored the need for a balanced assessment of both the harm caused and the offender's culpability in sentencing.

Orders