Dickerson v Police - [2016] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-5 [2016] NZHC 801

BETWEEN
SHANE CLIVE JOHN DICKERSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 April 2016

Counsel:

M B Ryan for Appellant
N J Wynne for Respondent

Judgment:

27 April 2016

JUDGMENT OF CLARK J

Introduction

[1] The appellant was sentenced in the District Court at Palmerston North on
19 January 2016 to eleven month’s imprisonment in respect of five charges.1 The individual sentences were imposed in the following way.

· Male assaults female 4 months imprisonment concurrent

· Common assault 2 months imprisonment concurrent

· Drove while suspended 1 month imprisonment cumulative

· Common assault 5 months imprisonment cumulative

· Outstanding fines 1 month imprisonment cumulative

[2] The appellant appeals the sentence of five months imprisonment for common

assault. That charge concerns an assault on the appellant’s partner.

1 Police v Dickerson [2016] NZDC 615.

DICKERSON v NEW ZEALAND POLICE [2016] NZHC 801 [27 April 2016]

Facts

[3] At the time he assaulted his partner the appellant was on bail for assaulting his brother and his grandmother.

[4] On Sunday 21 June 2015 at around 6.30pm the appellant and his partner were at the home address. The appellant’s two young sons and his partner’s son were in the lounge watching television. The victim heard the appellant speaking harshly to her son. She looked through the kitchen door and asked him not to speak in that manner. The appellant walked towards the victim and motioned his head as though to head butt her. She moved away to avoid him. He backed her into a corner and grabbed her firmly around her throat. She pulled him off and went to her car and phoned the police. The appellant left the property in his car. The victim did not suffer any injuries.

The appeal

Appellant’s submissions

[5] The appellant appeals his sentence as being manifestly excessive. Mr Ryan submitted that the starting point of seven months imprisonment was too high. He proposed instead a starting point of three months.

[6] Mr Ryan submitted also that the discount of 28 percent for the appellant’s guilty plea and participation in restorative justice with the victim was too low: it should have been 33 percent, or one month.

[7] The proper end sentence, Mr Ryan submitted should be two months imprisonment.

Respondent’s submissions

[8] The respondent’s position is that while a starting point of seven months could be considered high the end sentence is not manifestly excessive.

[9] When the nature of the assault against the appellant’s brother and grandmother is considered the 10 month sentence appropriately reflects the gravity of the offending as a whole.

[10] Furthermore the appellant was on bail for violent offending when he assaulted his partner.

The sentencing decision

[11] The Judge first dealt with the charges of male assaults female (the appellant’s grandmother) and common assault (the appellant’s brother). A combined starting point for the two offences was taken. An uplift of one month was…

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 Dickerson v Police

Details

AGLC: Dickerson v Police [2016] NZHC 801
Case: [2016] NZHC 801
Decision Date: 27 April 2016

CaseChat Overview and Summary

In Dickerson v New Zealand Police, the appellant, Shane Clive John Dickerson, appealed against a sentence of five months imprisonment for a charge of common assault. The sentencing decision was made in the District Court at Palmerston North. The appellant argued that the starting point of seven months imprisonment was too high and that the discount of 28 percent for his guilty plea and participation in restorative justice with the victim was too low. The respondent's position was that while a starting point of seven months could be considered high the end sentence was not manifestly excessive.

The court first dealt with the charges of male assaults female and common assault. A combined starting point for the two offences was taken. An uplift of one month was included. After discounts, a sentence of five months imprisonment was reached. The court held that the assault on the appellant's partner had to be dealt with by way of a cumulative sentence because the appellant was, at the time, on bail for the earlier violent offending. The court considered the three authorities which the appellant relied on and which, it is said, involved considerably more serious offending than the present case. The court held that the starting point was justified by the concerning aspects of the assault: it was directed at the victim’s throat, occurred in a domestic setting and was accompanied by an overlay of intimidation. The court also held that even if it considered the starting point to be too high the total sentence reflected the overall criminality of the offending and the offender.

The appeal was dismissed. The court held that the appellant had not demonstrated error in the approach of the sentencing Judge. The starting point was justified by the concerning aspects of the assault and the total sentence reflected the overall criminality of the offending and the offender.

Orders