Dickerson v Police
[2016] NZHC 801
•27 April 2016
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 RespondentJudgment:
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 included. After discounts a sentence of five months imprisonment was reached.
[12] Next the Judge said the assault on the 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.
[13] Of the assault on the appellant’s partner the Judge said:
[14] While the initial charge was one of male assaults female, it was reduced to Crimes Act 1961 assault but still I regard it as a serious example of domestic violence [in] that it involved you putting your right hand around her throat. Any assault involving that action is taken seriously by the Courts.
[15] I am going to adopt a starting point for that offence of seven months’ imprisonment, which takes into account the fact that it was similar violent re-offending while you were on bail. To make allowance for your attendance at Restorative Justice with your partner and your guilty pleas, I reduce that to five months’ imprisonment.
Analysis
[14] I consider first the three authorities which Mr Ryan relied on and which, it is said, involve considerably more serious offending than the present case. Further, the present charge is common assault and not male assaults female. Counsel also points out that the victim suffered no injury.
[15] In Arahanga v Police the appellant choked and repeatedly hit the victim’s
legs and punched her stomach and slapped her back. He then slapped her twice
more. Clifford J substituted on appeal a starting point of nine months imprisonment.2 That assault was clearly more serious than the present. The higher starting point must be seen in that light. Additionally, that charge was of male assaults female which attracts a higher maximum sentence.
[16] In Wawatai v Police3 the appellant punched his partner in the face with a closed fist causing a bleeding nose and swelling to her face. Courtney J noted there was no guideline judgment for male assaults female offending but surveyed comparable cases she considered were of assistance. Those cases took starting points of between five to nine months imprisonment for broadly comparable offending.
(a) Grayson v Police: eight months starting point for slapping partner in the face substituted for 10 months on appeal.4
(b)R v Reihana: a starting point of 10 months for punching his victim in the eye, splitting her eyebrow and causing swelling and bruising was halved by the Court of Appeal.5
(c) Mann v Police: a starting point of nine months for grabbing his former partner by her neck and pushing her backwards causing her to fall upheld on appeal.6
(d)Williams v Police: starting point of six months for punching his victim in the mouth causing a cut lip and bruising upheld on appeal.7
[17] Courtney J concluded from those authorities that seven months was an appropriate starting point.
2 Arahanga v Police [2015] NZHC 488.
3 Wawatai v Police [2015] NZHC 406.
4 Grayson v Police HC Hamilton CRI-2006-419-31, 6 April 2006.
5 R v Reihana CA143/03, 26 June 2003.
6 Mann v Police [2012] NZHC 2613.
7 Williams v Police [2014] NZHC 3255.
[18] In Waitai v R the appellant threw an object at the victim which hit her and caused her significant pain.8 He then put her in a choke hold three times repeatedly. Katz J on appeal reduced the starting point from 18 to 12 months imprisonment.
[19] While the offending in Wawatai was charged as male assault female the starting point (seven months) is a useful comparison. Although the present charge is common assault and carries a lesser maximum there are three bases for regarding the starting point as within range.
[20] First, this is a common assault involving domestic violence, which should tend towards the upper end of a sentencing range. Kohu v Police, a decision of Simon France J, concerned an appeal against a sentence for an offence of assault with intent to injure, which carries a maximum sentence of three years.9 I agree with France J’s observation that:10
Domestic violence is a scourge and sentences towards the upper end of a range are appropriate.
[21] Second, the violence directed at the victim’s throat ought to place it towards the top of the range of sentences for common assault. In Waitai v R, (involving a charge of male assaults female) Katz J said that strangulation was an aggravating factor justifying a higher starting point:11
… like the sentencing Judge, I am deeply concerned that the incident involved not just one, but three episodes of chocking. This is a seriously aggravating factor. I note that in risk assessment tools used by domestic violence workers and police, strangulation, short of causing death, is considered a “red flag” for further serious abuse and fatality. Both legal and medical studies in recent years have begun to emphasise the importance of strangulation in the context of responding to domestic violence. Strangulation is a relatively common cause of domestic violence related homicide and is a very high risk activity in a domestic violence context. Although it may leave no visible signs of injury, and is therefore sometimes treated less seriously than other forms of domestic violence such as punching or hitting, the risks associated with strangulation are very high.
8 Waitai v R [2014] NZHC 2116.
9 Kohu v Police [2013] NZHC 944.
10 At [16].
11 At [25], citing Heather Douglas and Robin Fitzgerald “Strangulation, domestic violence and the legal response” [2014] 3G Syd LR 231 at 232.
[22] More recently in the Report of the Law Commission Strangulation: The case for a new offence the authors wrote of the rapid growth in the past decade in understanding the role played by strangulation in family violence.12 Unlike some other forms of violence, such as hitting, “strangulation seems to be the preserve of dominant aggressors”.13 And:14
In the context of [intimate partner violence], it is arguably this element of strangulation that makes it a unique tool of coercion and control, apt to traumatise its victims long after the assault has ended.
[23] The Report’s commentary is relevant because it is founded on an intensive review of family violence in the New Zealand context and the prevalence of strangulation as a feature of that violence. This enhanced understanding of both its prevalence and the physical dangers strangulation presents makes it vital that such offending be denounced and deterred and the community protected by appropriate sentences.
[24] Thirdly, this offending involved an overlay of intimidation which requires a rigorous response.15 The absence of intimidation and the spontaneity of the violence in Williams was a factor that justified a starting point as low as seven months.
[25] The starting point is not in error.
The victim’s wishes
[26] The appellant’s submissions append a letter from the victim who says she has attempted to have the charges dropped. She notes she is near the end of her pregnancy and requires support. She says she would not have called the Police if she knew things would turn out this way, and wishes that things would return to normal.
[27] Beyond the victim’s approach to the Police her initial view of the assault is
not known. There appears to be no victim impact statement.
12 Law Commission Strangulation: The case for a new offence (NZLC R138, 2106) at [1.2].
13 At [2.14].
14 At [2.16].
15 Williams v Police [2014] NZHC 3255 at [11] per Mallon J, citing Mataiti v Police [2014] NZHC
1675 and Tutbury v Police [2013] NZHC 2960.
[28] Even taking the victim’s statements at face value there remains a compelling public interest in appropriately sentencing violence of this nature.
[29] As well the sentencing Judge is entitled to view a change in attitude of the victim with some scepticism and interpret subsequent statements in that light.16
The discount
[30] The appellant contends that the credit for his guilty plea and participation in a restorative justice process merited a 33 percent discount.
[31] For the appellant’s guilty plea and his attendance at a restorative justice meeting with the victim, the Judge reduced the starting point by 28 percent.
[32] Following Hessell v R the maximum discount for a guilty plea is 25 percent.17
[33] The remaining (presumably) three percent discount for remorse might seem slight but it was not necessarily in error. In Williams v R the Court of Appeal, upholding Woolford J’s assessment that no remorse discount was available, said that it was unnecessary for the sentencing Judge to go into “chapter and verse” in making
such assessments.18
[34] Further, I note that the Judge allowed a discount for an element of remorse in respect of the assaults on the appellant’s brother and grandmother. The discount was for being willing to attend restorative justice although that did not occur. That discount was arguably generous and might be seen as offsetting any inadequacies in the discount relating to the sentence which is the subject of this appeal.
Conclusion
[35] The appellant has not demonstrated error in the approach of the sentencing
Judge. The starting point is justified by the concerning aspects of the assault: it was
16 Grayson v Police HC Hamilton CRI-2006-419-31, 6 April 2006 at [12].
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
18 Williams v R [2012] NZCA 176 at [16].
directed at the victim’s throat, occurred in a domestic setting and was accompanied
by an overlay of intimidation.
[36] Even if I considered the starting point to be too high the total sentence reflects the overall criminality of the offending and the offender.19 The starting point for the charges of male assaults female and common assault in relation to the offending against the appellant’s 88 year-old grandmother and brother was six months imprisonment. That was arguably lenient given that the appellant directed violence at both victim’s heads, and that one victim was significantly
vulnerable because of her age.
Result
[37] The appeal is dismissed.
Karen Clark J
Solicitors:
M B Ryan, Palmerston North for Appellant
Crown Solicitor, Palmerston North for Respondent
19 R v Dodd [2013] NZCA 270 at [31]–[32].
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