Drewet v The King
[2023] NZCA 192
•31 May 2023 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA460/2022 [2023] NZCA 192 |
| BETWEEN | DWAYNE BRAD DREWET |
| AND | THE KING |
| Hearing: | 28 March 2023 (further submissions received 19 April 2023) |
Court: | French, Dunningham and Cull JJ |
Counsel: | M J Taylor-Cyphers for Appellant |
Judgment: | 31 May 2023 at 11 am |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Drewet was convicted at trial of several charges of violent offending against his former partner. The presiding judge, Judge Bergseng, sentenced him to a term of imprisonment of two years and four months.[1]
[1]R v Drewet [2022] NZDC 21169.
Mr Drewet now appeals his convictions and sentence.
Background
Mr Drewet and the complainant had known each other for some 25 years. They began what was described in evidence as an on-again, off-again relationship in early 2017. The relationship ended in around August/September 2018. The charges arose out of two incidents, the first of which was alleged to have occurred in November 2017 and the second in September 2018.
The complainant’s account of what happened on each occasion was as follows.
The first incident took place on 14 November 2017. Following a heated argument Mr Drewet seized the complainant’s cell phone. When she tried to retrieve it, he threw her to the ground with extreme force. She landed on her side on a raised garden bed, her leg hitting a low wooden fence.
She subsequently made a complaint to police on 20 November 2017. That same day, she attended a medical centre where bruising on both her forearms was noted as was bruising on her left shin and left knee. Photographs of the injuries were also taken.
In late December 2017, the complainant wrote to police advising she wanted to withdraw the complaint.
The second incident in September 2018 took place at a time when the complainant and Mr Drewet were living in different centres. He drove to the town where she was living for a visit. He said he wanted to continue to be friends and to put things right. He stayed for over a week and they spent time together in his van.
Things were amicable until 14 September 2018, which was the last day of his visit. According to the complainant, Mr Drewet became verbally abusive and when she tried to get out of the van, he prevented her from leaving. At some point when she was in the back of the van on a mattress, he straddled her and began to punch her multiple times in the face and head area. He then put a hand around her throat and squeezed, at the same time covering her nose and mouth. She was unable to breathe for several seconds and came close to losing consciousness. In evidence she described the force that Mr Drewet had used on a scale of one to 10, 10 being the most forceful, as a 10. She further alleged that he slammed her head against the mattress.
After driving around for a period, Mr Drewet eventually pulled up at a rest area and threw her out of the back of the van. She fell on asphalt and injured her shoulder which left her in pain for several weeks.
The complainant tried to conceal her injuries with makeup and reported for work the next day. Her employer was concerned by her appearance and asked a police officer to talk to her. The officer took the complainant to the hospital where she received medical treatment. Injuries noted included small abrasions to her scalp, bruising around her right eye, small bruises down both her arms, her left collarbone and left shoulder joint were both painful to the touch but no swelling or redness was evident, there was tenderness and overlying small bruising on the right side of her spine and bruising below her ribs on the right side of her back. Photographs were again taken.
Police subsequently conducted a videoed evidential interview of the complainant on 1 October 2018.
When questioned by the police in January 2019, Mr Drewet denied any wrongdoing. He declined to give a statement.
He was arrested and charged with the following offences:
(a)Two counts of male assaults female – the throwing of the complainant onto the garden bed in November 2017 and onto the asphalt in September 2018.
(b)Injuring with intent to injure – the punches to the complainant’s head and face in the van.
(c)Assault with intent to injure – the holding of the complainant’s throat and preventing her from being able to breathe.
Mr Drewet pleaded not guilty to all charges.
The trial
In addition to the complainant’s testimony, the Crown adduced evidence from a Family Action | Whānau Toa staff member who had assisted the complainant after the incident in November 2017, the employer and police officer from the 2018 incident, and the police officer who spoke to Mr Drewet in 2019. There was also an agreed statement of facts summarising the medical notes as detailed in [6] and [11] above.
Mr Drewet’s defence was that the allegations were fabricated.
In respect of the 2017 incident, it was suggested that in her attempts to retrieve her phone, the complainant had lost her balance and fallen to the ground. In respect of the 2018 incident, it was suggested that the complainant was the aggressor and any injuries had been caused by her own actions.
The thrust of the cross-examination of the complainant regarding the 2018 incident was that she had been unable to accept Mr Drewet ending the relationship and that she had threatened to kill herself. It was suggested that, in an attempt to carry out that threat, she had gotten out of the van to run down the motorway and had struggled violently against Mr Drewet when he tried to get her back into the van for her own safety.
The complainant denied all these suggestions.
In his cross-examination of both the complainant and a police witness, trial counsel was permitted to adduce evidence of the complainant making false accusations of rape and assault against police officers as well as evidence of her convictions for resisting arrest and assaulting police officers.
One set of those convictions arose out of an incident which occurred in October 2017, that is to say, a month before the first index charge of male assaults female. The complainant had threatened to harm herself and jump out of a moving car being driven by Mr Drewet. She had been drinking and admitted she may have hit Mr Drewet but said it happened as a result of “hours of abuse” by him in the car. Police became involved. The complainant refused to get out of the car and when police attempted to pull her out, she became aggressive and kicked them. She threatened to “smash” one officer and while he was restraining her, she headbutted him and hit him on the nose. In evidence, she said she was angry with the police because they were arresting the wrong person. She also stated that the following morning she sought help from a mental health facility.
The other set of offending by the complainant against police arose in January 2020 when the complainant had been physically aggressive towards police and had falsely accused them of rape and assault.
Mr Drewet did not give or call evidence.
In his closing address, defence counsel highlighted inconsistencies in the complainant’s accounts of the 2017 incident in particular her differing accounts as to the cause of the argument that led Mr Drewet to take her cell phone. Counsel also submitted that the evidence of the complainant’s dealings with police showed that she had a propensity for violent outbursts and making false accusations.
Counsel further contended that the photographic evidence of her injuries in September 2018 was not consistent with her account of what happened. It was suggested that if what she was saying was true, the injuries would have been much worse. As for the photos taken in 2017, the point was made that these were taken six days after the alleged assault. It was further submitted that her story was inherently implausible because it involved her getting into Mr Drewet’s car immediately after the alleged assault, spending the night with him and then being driven by him to a place where she could get some help.
The jury returned a verdict of guilty on all four charges.
We turn now to address the appeal against conviction. Five grounds of appeal are advanced relating to the admissibility of certain evidence and the Judge’s directions to the jury.
Appeal against conviction
Ground One: the Judge’s directions on reliability, credibility and mistake were flawed and inadequate
In his summing up, the Judge explained the concepts of reliability and credibility in these terms:
I’ll just explain some of the language used about the evidence of witnesses and the first is that you may make assessments about the [veracity] of a witness and by [veracity] I mean the disposition of a witness to tell the truth. You may decide what evidence is credible. By credible I mean evidence that is given honestly and sincerely and which is believable. You may decide whether evidence is reliable or unreliable. Your assessment of the memory of a witness may be relevant to this consideration. You may consider whether evidence is consistent or inconsistent internally and compared with other evidence.
You disregard evidence that you think is simply mistaken. You take into account that even an honest and sincere witness can make mistakes. It is for you to decide how much of a witness’s evidence you will accept. You may decide to accept none, some or you may decide to accept all of it. You may decide what weight you give to the evidence. By weight, I mean its relevance and its importance, how much you think it assists you in deciding an issue.
Counsel, Ms Taylor-Cyphers submitted on behalf of Mr Drewet that in this direction the Judge conflated the concepts of truthfulness and credibility without the usual cautionary warnings about reliability and mistake, and as a result failed to fairly communicate them. That was critical, in her submission, given the case turned on credibility.
Ms Taylor-Cyphers further contended that the Judge was required to give a reliability warning under s 122(2) of the Evidence Act 2006. Section 122(2)(c) provides that a judge must consider whether to give a reliability warning whenever evidence is given by a witness who may have a motive to give false evidence that is prejudicial to a defendant. Ms Taylor-Cyphers argued that s 122(2)(c) was engaged because the complainant had a motive for giving false evidence — namely to punish Mr Drewet at the conclusion of their relationship — and also because of her history of making false allegations about police. Ms Taylor-Cyphers went so far as to say that because the defence case hinged on credibility, the absence of a reliability warning might reasonably have made a difference to the outcome.
We do not accept these submissions. Although the words “reliable” and “credible” are often used interchangeably, the orthodox distinction between them is that “credibility” is essentially concerned with a person’s honesty – does the witness honestly believe that what they are saying is true — while “reliability” is a wider concept encompassing accuracy — did what the witness say happened, actually happen.[2] Obviously the two concepts overlap. If a person is giving false evidence that they know to be false, then their evidence is considered to be both unreliable and not credible.[3] The distinction between credibility and reliability comes into sharp focus in the case of an honest but mistaken witness.[4]
[2]See for example R v Biddle [2008] NZCA 398 at [9]–[11].
[3]See for example Taylor v Asteron Life Ltd [2019] NZHC 1489 at [10]–[11].
[4]See for example Aranui v R [2022] NZCA 25 at [35]–[38].
In our view, there is nothing in the Judge’s direction that was unbalanced or which could possibly have misled the jury. The Judge correctly equated credibility with truthfulness and while he did not define reliability as such, it is a common term and it would have been clear to the jury as a result of the examples he gave that it was a wider concept than just honest belief in the truth of the testimony.
More importantly, as will be apparent from our account of the trial, the jury could not have been left in any doubt that the defendant was challenging the complainant’s credibility and saying that she was deliberately lying as opposed to being mistaken. Indeed, at one point in the summing up, the Judge expressly stated that issues as to the complainant’s credibility were “essentially the whole defence case”.
The jury also could not have been left in any doubt as to the basis on which the defendant was challenging the complainant’s credibility. The trial was a short one, with the cross-examination of the complainant about her lack of credibility taking up a significant proportion of hearing time. The challenge to her credibility and the reasons for that challenge were also the focus of the defence closing and featured large in the Judge’s summing up.
Having regard to all those circumstances we are also not persuaded that a reliability warning under s 122(2) was required or indeed appropriate. We would add that the trial record does not show that a motive to lie in the terms described by Ms Taylor‑Cyphers was actually ever put to the complainant
We therefore reject this ground of appeal.
Ground Two: unfairly prejudicial “relationship evidence” was wrongly admitted
In evidence, the complainant contended that Mr Drewet had assaulted her on other occasions. These other occasions were not the subject of any charges. Ms Taylor-Cyphers says this evidence was highly prejudicial propensity evidence and should have been excluded. She says further that, although the Judge described the evidence as relationship evidence in his summing up, the usual reasons for admitting relationship evidence such as to provide an explanation for delay in making a complaint were not present. The risk the jury would use the evidence to support illegitimate propensity reasoning was accordingly high.
We agree that regardless of the label used to describe this evidence, it came within the statutory definition of propensity evidence[5] and was potentially prejudicial.
[5]Evidence Act 2006, s 40(1).
However, in assessing the merits of this ground of appeal, it is important to note how the impugned evidence came to be given. It emerged spontaneously as the result of reasonably extensive cross examination of the complainant about her interactions with Mr Drewet on other occasions that, on the face of them, showed her in a bad light. Most notably, this included cross-examination about the events leading to her convictions for assaulting police officers. The cross-examination was persistent and designed to show that the complainant was the aggressor and that she was a volatile person prone to jumping out of moving cars being driven by Mr Drewet. It was in responding to those allegations and in justifying her conduct on these other occasions that the complainant made references to being assaulted by Mr Drewet.
That the complainant was alleging other assaults must have been known to the defence prior to trial. There was reference, for example, in the evidential interview to constant verbal and emotional abuse and the complainant saying Mr Drewet knew she felt vulnerable and scared. The complainant also stated in her evidential interview that she “can’t keep coming back from all these assaults. The injuries are just getting too much and the emotional impact and everything is just degrading”.
Trial counsel raised no objection to these aspects of the evidential interview and importantly did not raise any objection when in cross-examination the complainant gave the answers that are now impugned on appeal. It is thus reasonable to assume that the risk of the complainant giving this evidence was a risk known to the defence when it chose to cross-examine about other occasions, but it was a risk the defence was prepared to take because of the perceived benefits. As Mr Lillico for the Crown submitted, the absence of any objection suggests that the complainant’s interjections were not deemed sufficiently prejudicial. Indeed it is arguable that the fact the complainant was combative in her answers may well have been seen as assisting the defence. At one point, when the complainant became overly riled by the cross-examination, the Judge directed the Registrar to cut the link to the separate room where the complainant was giving her evidence. That would have been memorable for the jury.
A further consideration is that the Judge gave the jury a specific direction about the evidence in his summing up. He instructed them that the complainant’s utterances about these other assaults did not support her credibility and did not show that Mr Drewet had a propensity to act in this way. He also directed them to focus on the four charges before them and to determine each charge on the basis of the evidence pertaining to that charge.
We conclude, as did this Court in another very similar case (Williams v R),[6] that the evidence in question has not created the risk of a miscarriage of justice.
Ground Three: the omission of consent in question trails made the pathway to guilty easier than it should have been
[6]Williams v R [2021] NZCA 535 at [70]. This Court found that allegations made by the complainant were prejudicial, but considered it was not a case where a witness had introduced significant illegitimately prejudicial material for her own purposes. The complainant’s statements expanding her allegations were made in response to being needled or challenged robustly in cross‑examination.
Ms Taylor-Cyphers submits that the question trails relating to all charges were truncated and deficient because they did not cover absence of consent or reasonable belief in consent. In her submission, the Judge erred in removing two possible routes to a not guilty verdict.
We disagree. It is well established that absence of consent is not an element of the offence of assault as such and that a Judge need only direct on consent if it is raised as a defence and there is an evidential foundation.[7] Consent or honest and reasonable belief in consent were not part of the defence in this case and there was no evidential foundation to trigger the need for a direction.
[7]R v Lee [2006] 3 NZLR 42 (CA), (2006) 22 CRNZ 568; and Bannin v Police [1991] 2 NZLR 237 (HC), (1991) 7 CRNZ 55.
This ground of appeal also fails.
Ground Four: a counter-intuitive evidence direction unfairly bolstered the Crown case
In his summing up, the Judge gave a counter-intuitive direction in the following terms:
I just want to talk to you a little bit about the context of these charges. They arise in the context of domestic violence, allegations of violence between partners and ex-partners. So you might consider that it’s to be assumed, or expected, that a woman who’s been a victim of an assault or a series of assaults, would not only want to complain to the police but would want to do so promptly, or to someone, and that they would leave the relationship. Such expectations are not justified and there can be good reasons for the victims of this type of offending to pass up opportunities to leave an abusive partner, to delay making a complaint – in cases, even, for many years – and to withdraw a valid complaint. Although we look to you to use your common sense and experience of the world in reaching your decisions, the courts recognise that not many people have experience of the ways in which someone, who has been violently abused, may react to such an occurrence and common sense has limitations when it comes to expectations about responses to incidents of domestic violence.
The experience of the court [shows] that different people react differently to family violence or domestic violence and that there’s no typical or normal pattern of behaviour which is to be expected in response to domestic violence. Just how any individual will react is not predictable. Silence and delay in making a complaint, [or] withdrawal of a valid complaint are not uncommon. It’s not uncommon for a person who’s been subject to domestic violence to stay with an abusive partner after the outset of such violence and even for extended periods.
The fact that [the complainant] continued to remain involved with Mr Drewet after she says she was assaulted in November 2017, any delay in making a complaint, any discrepancies in the exact nature of the complaint and the withdrawal of the November 2017 complaint are all matters for you to consider when you’re assessing her evidence. In considering the evidence, though, please guard against any tendency to expect an individual to react or to conduct themselves in any particular way following an incident of domestic violence. To do so would be to unfairly prejudge those matters.
On appeal, Ms Taylor-Cyphers is both critical of the making of this direction and its contents. She submits that because no counter-intuitive evidence was adduced, the direction was the first information the jury had received about delayed complaints and what effect if any that had on the truthfulness or otherwise of the complainant in the case. Because the information only came from the Judge, there was a risk that it unfairly bolstered the Crown case.
In Ms Taylor-Cyphers’ submission, at the close of the evidence, the Judge should have garnered the views of counsel as to what direction, if any, was required and whether it would be addressed in closing. As it was, the lack of an evidential basis for the direction combined with the failure to seek input from counsel meant it was not addressed in counsel’s closing, thus eroding Mr Drewet’s fair trial rights.
We do not accept those submissions. In terms of the content of the direction, none of it could be described as anything other than well established and uncontroversial information about the behaviour of the victims of family violence. As to the Judge’s decision to give such a direction in the first place, our view is that this was appropriate having regard to the way the defence had run its case. For example, the complainant’s credibility was questioned because she withdrew the charges in 2017, had remained in Mr Drewet’s company, and had continued to associate with him — conduct that was said to be inconsistent with having been the victim of violence. Ultimately, however, as the Judge also directed, it was open to the jury to use the evidence in the way it saw fit.
For completeness we note a further criticism made by the appellant under the heading of counter-intuitive evidence relating to a comment the Judge made about the 2017 incident. The Judge said:
Regarding the November 2017 incident, Mr Burns notes that there were no charges following her initial complaint, that was 20 November 2017. But, of course, you’d also be aware that on the 28th of December 2017, [the complainant] signed a statement asking for those charges to be withdrawn so you could ask yourselves the fact that there were no charges immediately filed does that help you much in deciding what the key issues are, what does it add?
Ms Taylor-Cyphers submits this was unfair to the defence for two reasons. First, it served to highlight that further complaints existed. And secondly, it would have likely resulted in the jury attributing less weight to the fact no charges were initially laid than it might otherwise have done.
In our view, the comment is not capable of being interpreted as highlighting the existence of other complaints and we reject the suggestion it does. As to the relevance of charges not being laid, the Judge’s comment would seem apt. There was no evidence as to why charges had not been laid before the complainant withdrew them. It could have been because there was a police backlog. Or it could have been because police did not believe the complainant, and had decided not to proceed but were spared having to tell the complainant that because she withdrew the complaint herself first. Any inferences being drawn from the fact no charges were laid before December would have been speculation. In any event, what the police thought of the complainant and their assessment of the strength of her case was not only irrelevant but technically inadmissible opinion evidence.
We are not persuaded this ground of appeal has any merit.
Ground Five: the direction regarding similarities between charges was in error
In his closing address, in relation to the two male assaults female charges, the prosecutor commented that he thought it was “interesting” that Mr Drewet was alleged to have thrown the complainant onto the ground in both 2017 and in 2018. He went on to say that “perhaps” there were aspects of the evidence that are similar about his behaviour not only in relation to throwing but also taking the complainant’s cell phone in both 2017 and 2018.
We have already mentioned that when the complainant was thrown to the ground in 2017, she alleged that at the time she had been trying to retrieve her phone. The prosecutor’s reference to another phone being taken in 2018 was a reference to a separate incident that occurred a month before the September 2018 van incident which gave rise to three of the four charges. On 12 August 2018 the complainant had arrived at her workplace without her cell phone and told her employer that Mr Drewet had taken it against her will following an argument. Later that same day, Mr Drewet arrived at the workplace with the phone. He handed it back saying in the presence of the employer that he had taken it by mistake. The employer said in evidence that Mr Drewet was pleasant. She did not, however, believe him about the phone, although she also accepted this was an assumption on her part based solely on what the complainant had told her.
When summarising the cases of the respective parties in his summing up, the Judge referred to the prosecutor’s comments about the similarities, saying:
… In respect of charges 1 and 4, Mr Kirkpatrick submits that there are some similar features that you see appearing. Her phone was taken in 2017 and 2018 and that she was thrown to the ground. If there is any consistency of behaviour in terms of the allegations whether that helps you in deciding the individual charges is a matter for you to decide in terms of whether or not it takes you to that point.
The first thing that you’d have to decide is that there are some similarities, you would then have to consider whether or not those similarities assist you much in determining each of the cases. If there aren’t any similarities between the detail of the charges then, clearly, it wouldn’t help you one way or the other and you’d put that to one side.
On appeal, Ms Taylor-Cyphers submitted that the prosecutor’s comments amounted to an invitation to treat the factual similarities of the evidence relating to each male assaults female charge as propensity evidence in respect of the other. Yet there had never been any application by the Crown to be allowed to do that. In her submission, the Judge should not have made the direction he did. Rather he should have emphasised that the jury were required to consider the evidence in respect of each charge separately and were not to engage in impermissible propensity reasoning as between charges.
We consider that of the various grounds of appeal advanced, this ground is the strongest.
We agree that if evidence of Mr Drewet seizing the phone and throwing the complainant to the ground in 2017 was evidence bearing on his guilt of the September 2018 male assaults female charge and vice versa, then it was clearly within the statutory definition of propensity evidence and the prosecutor’s comments were capable of being interpreted as an invitation to the jury to engage in propensity reasoning. Otherwise, why did the prosecutor make those comments?
As already mentioned, the Judge did in fact give a very clear direction about the need to consider each charge separately, and to determine each charge on the basis solely of the evidence that related to that particular charge. But, that of course begs the question of identifying what evidence properly related to each charge. In our view, it is highly arguable that when subjected to the test of admissibility under the propensity provisions of the Evidence Act, the two suggested similarities were not sufficiently probative to be cross-admissible.[8] For that reason, contrary to a submission made by Mr Lillico, we consider the Judge would have been wiser to have steered clear of giving any propensity direction.
[8]Evidence Act, ss 40–43.
The critical question is whether the prosecutor’s comments and the direction have resulted in a miscarriage of justice. We conclude they have not.
The prosecutor’s musings — although better left unsaid — consisted of only two sentences in a seven page closing address and were expressed in tentative terms. They were far from being a central feature of the Crown case. It is therefore not surprising there was no objection to the comments by trial counsel.
The Judge’s direction was not made in the more important section of his summing up where he gave directions about how the jury was to approach particular aspects of the evidence. Rather, as mentioned, it was contained in the section where the Judge was summarising the respective cases, a section which began and ended with an emphatic statement that what the lawyers had to say were only submissions. The impugned direction itself did not endorse what the prosecutor said and, by asking the jury to focus on “the details” of each charge, the Judge effectively excluded the 2018 phone incident as it was not a detail of the September 2018 van charges, let alone a detail of the 2017 charge.
It needs to be borne in mind too that in his summing up, the Judge also specifically warned the jury that of itself repetition does not necessarily make something true and that an untruthful person might continuously repeat the same lie. The case turned on the credibility of the complainant and insofar as there were similarities between events in 2017 and 2018, she was the sole source of the alleged similarities. The jury either believed her allegations or they did not. If her lies were similar, they were still lies.
It is also relevant to note in terms of the outcome of the trial that the complainant’s evidence was supported by the photographic evidence and medical notes of her injuries. Alternative explanations for the injuries in the photos were put to the complainant but they did not fully explain all the injuries and the alternative explanations were denied by her. The suggestions put by counsel to her were not of course in themselves evidence. And her denials of them meant there was no evidence of these alternative explanations other than inferences sought to be drawn from the complainant’s behaviour on other occasions.
For all these reasons we are confident that any error the Judge may have made in giving the direction about the alleged similarities was not an error likely to have affected the outcome of the trial nor did it result in an unfair trial.
The appeal against conviction is accordingly dismissed.
Appeal against sentence
At sentencing, the Judge’s methodology was as follows. He took the injuring with intent charge as the lead offence and identified the appropriate starting point as being a term of imprisonment of two and a half years.[9] He then adjusted that starting point upwards by four months on account of the assault with intent to injure and the 2018 male assaults female offences, with a further uplift of two months for the 2017 male assaults female offence.[10]
[9]R v Drewet, above n 1, at [23].
[10]At [25].
Having arrived at that provisional starting point of three years’ imprisonment, the Judge then considered personal mitigating factors. He allowed a discount of 10 per cent on account of matters raised in a s 27 report, a five per cent discount in recognition of Mr Drewet’s participation in a tikanga course and a further five per cent discount in recognition of Mr Drewet’s lengthy and offence-free bail.[11] The application of those discounts resulted in an end sentence of two years and four months’ imprisonment.[12]
[11]At [28].
[12]At [28].
On appeal, Ms Taylor-Cyphers contends the sentence was manifestly excessive because the Judge’s starting point was too high and the discounts too meagre. The contention is that the uplift for the assault with intent to injure offence should have been only three months, not four months. The latter is said to be the result of the Judge wrongly relying on sentencing levels for the offence of strangulation.[13] Yet that offence was created after the date of Mr Drewet’s offending and is therefore irrelevant. As regards the discount for cultural factors, the argument is that the Judge having accepted there was a causal nexus between Mr Drewet’s background and his offending, the discount should have been 15 per cent after taking into account his rehabilitative prospects.
[13]Crimes Act 1961, s 189A.
We agree that Mr Drewet was entitled to be sentenced on the basis of the law as it existed in 2018 but consider the submission overlooks that the four month uplift in this case was on account not only of the assault with intent to injure but also the 2018 male assault female charge (throwing the complainant onto the asphalt). We are satisfied having regard to the totality of the offending that a starting point of three years’ imprisonment was consistent with the case law[14] and within range.
[14]See for example Nahi v New Zealand Police [2012] NZHC 2025; Grayson v Police HC Hamilton CRI-2006-419-31, 6 April 2006; and Poata v Police HC Rotorua CRI-2010-470-23, 5 July 2010.
We are also not persuaded the Judge was required to give a greater discount for the matters raised in the s 27 report. In our assessment, the 10 per cent discount fairly reflected the strength of the connection between those matters and the offending. Further, in our assessment, the Judge was entitled to take the view that Mr Drewet’s continued denial of the offending meant any additional discount for rehabilitative prospects was not available.
We conclude there was no error in the sentencing warranting appellate intervention.
The appeal against sentence is accordingly dismissed.
Outcome
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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