Elizalde v Police

[2015] NZHC 959

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-000013 [2015] NZHC 959

BETWEEN

ERIC ELIZALDE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 May 2015
Counsel:	TK Donald for Appellant BM O'Connor for Respondent
Judgment:	5 May 2015

JUDGMENT OF ASHER J

Solicitors/Counsel:

TK Donald, Whangarei.

Crown Solicitor, Whangarei.

ELIZALDE v NZ POLICE [2015] NZHC 959 [5 May 2015]

Introduction

[1]      The appellant Eric Elizalde is an American national who in October 2014 was on holiday in New Zealand.  At about 1.15am on 1 October 2014 he was outside the Pipi Patch Bar on Kings Road in Paihia.  He observed the victim who was talking to friends.  He was angry with the victim because the victim had made some approach to a woman with whom Mr Elizalde had a connection.

[2]      Mr Elizalde walked up to the victim while the victim was not looking at him, and punched him once on the lefthand side of the jaw with a closed right fist.  The punch caused the victim to stumble back holding his face in shock.  The defendant tried to strike the victim again but was held back by a member of the public.  As a result of the assault the victim was transported by ambulance to hospital.   It was found that his jaw was broken in two places and it required surgery, numerous stitches, and three metal plates to reconstruct his jaw.  The victim had to have two weeks off work.

[3]      The defendant when immediately approached stated that he had hit the victim because of a woman.  He said that the victim was lucky that he did not get worse. However, by the time of sentence he was remorseful and I will refer to this later.

[4]      The appeal is against the sentence imposed upon Mr Elizalde by Judge Davis on 27 November 2014.1   Mr Elizalde was convicted of injuring with intent to injure, which carries a maximum sentence of five years’ imprisonment.2     The Judge examined the facts and considered that there had been a serious street attack.3    He fixed a starting point of two years and six months’ imprisonment.   He allowed a

25 per cent discount for the guilty plea.   As Mr Elizalde was foreigner in New Zealand the Judge recognised that it would be particularly difficult for him to serve a sentence as he has no family in New Zealand.   He therefore allowed a six month deduction for that reason.  The Judge noted that a sentence of home detention was not available as Mr Elizalde was only a visitor to New Zealand.  The end sentence

therefore was 16 months’ imprisonment.

1      Police v Elizalde DC Kaikohe CRI-2014-027-1554, 27 November 2014.

2      Crimes Act 1961, s 189(2).

3      Police v Elizalde, above n 1, at [5].

Leave to appeal

[5]      The first issue to be dealt with is leave to appeal.  The notice of appeal was filed out of time.4   Unfortunately Mr Elizalde was not actually visited in prison until March of this year, some four months after he was sentenced.  I have affidavits from counsel and counsel’s practice manager explaining how this arose.  Certainly it was not Mr Elizalde’s fault that there was this delay.  Ms O’Connor for the Crown has responsibly accepted that this is so and does not oppose leave being granted.  Leave

to appeal out of time is accordingly granted and the formal time for appealing is

extended to today’s date.

Submissions

[6]      Ms  Donald  for  Mr  Elizalde  submits  that  the  sentence  was  manifestly excessive.  She focused in her submissions on the starting point.  She said that in terms of the bands set out in Nuku v R5  and comparable sentences it was too high. She submits that the starting point should have been two years’ imprisonment.

[7]      Ms O’Connor for the Police submits that even if two years is accepted as the right starting point, the six month deduction for difficulties of being imprisoned in New Zealand was excessive,  particularly when  considered with the 25 per cent discount for the guilty plea.  She submitted that an excessive discount approaching

50 per cent had been allowed.   She submitted that if two years was fixed as the starting point, and a more appropriate one-third deduction for the guilty plea and difficulties with serving the sentence were made, that meant that the end sentence of

16 months’ imprisonment that was imposed was well within range.

Approach

[8]      The approach to an appeal such as this is well settled.  Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason there was an error in the sentence imposed on conviction or a different sentence should be imposed.  In any other case the Court must dismiss the

appeal.  The Court of Appeal has recently confirmed that this was not intended to

4      Criminal Procedure Act 2011, s 248.

5      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

change the previous approach of the Courts under the Summary Proceedings Act

1957.6

[9]      The Court will not intervene if the sentence is within the range and can be justified by accepting sentencing principles.  However, if the sentence is manifestly excessive the Court will intervene.  If the sentence is not manifestly excessive, even errors in the process by which the sentence was reached will not result in the appeal being allowed.

Starting point

[10]     The starting point in assault charges of this type falls within the bands set out in the Court of Appeal tariff decision of Nuku.  The Court of Appeal there, having set out the range of  assault  charges,  and  having decided that  the tariff  decision  of R v Taueki7  was not easily adapted to lesser charges, set out bands for lower level assaults.  The bands in Nuku set out at [38] cover lesser assault offending including injuring with intent to injure.8

[11]     Band one is where there are few aggravating features, where the level of violence is relatively low and the sentencing Judge considers the offender’s culpability to be at a low level.  In band one a sentence of less than imprisonment can be appropriate.

[12]     Band two is where there should be a starting point of up to three years’ imprisonment and will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

[13]     Band three is where there should be a starting point of two years up to the statutory maximum and will be appropriate where there are three or more of the aggravating  factors  listed  in  Taueki  and  the  combination  of  those  features  is

particularly serious.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

7      R v Taueki [2005] 3 NZLR 372 (CA).

8      Nuku v R, above n 5, at [37].

[14]     Judge Davis in his decision identified three aggravating factors.  These were serious injury (the broken jaw), attack to the head and the vulnerability of the victim. The Judge observed that “this was a king-hit and there is no other way to describe it”.9

[15]     The level of violence was not so low as to warrant band one, and there was not the presence of high level or prolonged violence which would warrant band three.  The Judge was right to find that the assault falls within band two of Nuku where the starting point was up to three years’ imprisonment.   It featured three or fewer aggravating factors.

[16]     While the Judge was correct to identify the three aggravating factors, it was also necessary to evaluate the seriousness of those factors.10     A very serious aggravating  factor  can  lift  the  offending  into  a  higher  band,  whereas  if  the aggravating  factors  are  in  a mild  form  the result  may be that  a lower band  is appropriate.   The seriousness will affect also the position of an offence within a band.

[17]     The most seriously aggravating factor in this incident was the serious injury. The  blow  must  have  been  powerful,  breaking  the  jaw  as  it  did  in  two  places. However, while accepting that this is a serious injury it can be observed that it was not life threatening and it does not appear that there will be any long term impact.

[18]     The other two aggravating factors of assault to the head and vulnerability are of a lower order of seriousness.  There was no weapon involved and no repeat blows. In terms of vulnerability, while the victim was surprised by the punch, he was not asleep, or lying down on the ground, or young, or handicapped or showing some other particular feature of vulnerability.  The victim was an adult standing male, and he was not knocked over by the blow.

[19]     I have been referred to some comparable decisions by counsel.  I note that in

Tiplady-Koroheke v R11  a two year starting point was accepted by the Court of

9      Police v Elizalde, above n 1, at [10].

10     Nuku v R, above n 5, at [42]; R v Taueki, above 7, at [30].

11     Tiplady-Koroheke v R [2012] NZCA 477.

Appeal where the appellant had punched the victim in the head at a party, and where four associates had joined in the assault, and when the victim was on the ground there was repeated kicking to the head and stomach.  The victim suffered a broken eye socket and severe bruising.  The culpability of that offending was higher than the present.

[20]     In Dean v Police,12 there was an unprovoked attack, pushing a victim in the back, punching him in the face and causing him to fall to the ground, and then a further five punches to the victim’s face and a stomping on the victim’s head.  The victim lost consciousness for a period during the assault and suffered contusions to the eye, abrasions to the lips, face and head and a partial tear of the mouth.  The starting point there was fixed at two years’ imprisonment.  That offending was also more serious than that of Mr Elizalde.

[21]     In  this  case there was  only one seriously aggravating factor.    It  was  an offence involving a hard and unexpected punch which inflicted a moderate injury. Overall in assessing culpability I see this offending being at the lower end of band two.  I consider the right starting point to have been 21 months’ imprisonment.  Two and a half years’ imprisonment, close to the band two maximum, was too high.

Personal factors

[22]     I turn to the personal factors.  The Judge was right in allowing a discount for the particular difficulty that Mr Elizalde will suffer in serving a sentence of imprisonment in a country where he has no relatives and no contacts and has just been a visitor.   However, I accept Ms O’Connor’s submission that the discount allowed was very high indeed, and in all the circumstances unduly generous.  I bear in  mind  also  that  given  the  significantly lower  starting  point  I  have  fixed,  the duration of the term to be served by Mr Elizalde will be shorter, and therefore that element of hardship will not be endured for so long.

[23]     In all the circumstances in my view the right deduction for this factor is a three month reduction reducing the sentence to 18 months’ imprisonment.

12     Dean v Police [2014] NZHC 1542.

[24]     The Judge did not make any allowance for the fact that Mr Elizalde, a 34 year old male, had no previous convictions in New Zealand and none that the Police were aware of in the United States.  He appears to be of good character.  Some discount should  have  been  allowed  for  that  factor.    My  consideration  of  this  factor  is influenced by the fact that when he got to Court Mr Elizalde wrote a letter, in which he expressed what seems to be genuine remorse for what he had done.  I will allow a deduction of two months for good character reducing the sentence to 16 months’ imprisonment.

[25]     If I then applied the 25 per cent discount for the guilty plea, the end sentence is 12 months’ imprisonment.  I stand back and consider Ms O’Connor’s submission that the sentence of 16 months’ imprisonment was within the range.  It was in my view  too  high  by  a  margin  of  one-quarter.    I  conclude  that  the  sentence  was manifestly excessive.  It is necessary therefore to allow the appeal.

Result

[26]     The  appeal  is  allowed  and  the  sentence  of  16  months’ imprisonment  is

quashed. A substituted sentence of 12 months’ imprisonment is imposed.

……………………………..

Asher J