IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-0273
[2021] NZHC 1823
BETWEEN
LIAM ROBERT JAMES DOUGLAS
Appellant
AND
THE QUEEN
Respondent
Hearing:
19 July 2021
Appearances:
C G Farquhar for the appellant B N Kirkpatrick for the Crown
Judgment:
19 July 2021
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
C G Farquhar, Barrister, Auckland Meredith Connell, Auckland
DOUGLAS v R [2021] NZHC 1823 [19 July 2021]
[1] Liam Douglas appeals his sentence of four months’ community detention and 24 months’ intensive supervision, imposed by Judge N R Dawson in the District Court at Auckland on 27 May 2021,1 on Mr Douglas’ guilty pleas to charges each of contravening a protection order,2 and assaulting a person in a family relationship.3
Background
[2] The victim is Mr Douglas’ former partner. After arguing with her at her Auckland apartment the previous day, Mr Douglas returned in the morning of Monday, 6 April 2020, to stand over her while she was sleeping and punch her in her right eye. On so waking her, he yelled and swore at her. She left the room to check on the couple’s two children living with her. In trying to close the door to their son’s room, Mr Douglas pushed her and punched her forehead. Mr Douglas then banged his own head repeatedly on the kitchen table, blaming his former partner for those injuries, and left the apartment.
Decision under appeal
[3] The Judge noted Mr Douglas’ prior convictions against his former partner, resulting in a sentence of community work and supervision, and various sentencing reports.4 Identifying sentencing purposes of accountability, denunciation and rehabilitation,5 the Judge found Mr Douglas’ offending was aggravated by his attack to the victim’s head, in the place she lived with their children, to cause physical harm to a “particularly vulnerable” victim.6 He considered there was “a medium level of premeditation” to the offending, Mr Douglas attending the address to inflict violence.7
[4] The Judge gave Mr Douglas a 20 per cent discount for his guilty pleas, and credited him with his remorse and “entirely self-motivated” “considerable rehabilitation”,8 against a background of anger management issues and an abusive and
1 R v Douglas [2021] NZDC 11706.
2 Family Violence Act 2018, s 112(1)(a) (maximum sentence: three years’ imprisonment).
3 Crimes Act 1961, s 194A (maximum sentence: two years’ imprisonment).
4 R v Douglas, above n 1, at [5]–[6].
5 At [7]–[8].
6 At [9]–[10].
7 At [11].
8 At [12].
culturally dislocated childhood. From a starting point of 12 months’ imprisonment, uplifted to 15 months on account of Mr Douglas’ history of offending against the same victim, the Judge discounted by 20 per cent for guilty pleas, 15 per cent for his background, and 10 per cent for his remorse, insight and rehabilitation to calculate eight months’ imprisonment.9
[5] The Judge then considered Mr Douglas’ six weeks’ remand met sentencing’s deterrent and denunciation factors,10 preferring four months’ community detention to reflect Mr Douglas’…
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.
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AGLC
Douglas v The Queen [2021] NZHC 1823
Case
[2021] NZHC 1823
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Liam Douglas, appealed against his sentence of four months' community detention and 24 months' intensive supervision, imposed by the District Court. The charges against Mr Douglas included contravening a protection order and assaulting his former partner. Mr Douglas returned to his former partner's residence and assaulted her while she slept and later in the day. The court had to determine whether the sentence was appropriate given the circumstances of the case, including Mr Douglas' background and the level of rehabilitation he had undertaken.
The court considered whether the sentence was manifestly excessive and whether the Judge had failed to consider Mr Douglas' time on electronically-monitored bail as a mitigating factor. The court found that while the Judge should have taken into account Mr Douglas' time on bail, the sentence was not manifestly excessive and was appropriate given the circumstances of the case.
The court dismissed the appeal and upheld the sentence imposed by the District Court. The court found that the sentence was appropriate given the circumstances of the case, including Mr Douglas' background and the level of rehabilitation he had undertaken. The court also found that while the Judge should have taken into account Mr Douglas' time on bail, this did not render the sentence manifestly excessive.