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…

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 Elizalde v Police

Details

AGLC: Elizalde v Police [2015] NZHC 959
Case: [2015] NZHC 959
Decision Date: 5 May 2015

CaseChat Overview and Summary

The appeal in this case was brought by Eric Elizalde, an American national, against the sentence imposed by the District Court in New Zealand. Elizalde was convicted of injuring with intent to injure, a crime carrying a maximum penalty of five years' imprisonment, after he punched a man outside a bar in Paihia, New Zealand, causing the victim to suffer a broken jaw. The sentence imposed was 16 months' imprisonment, which Elizalde appealed on the basis that it was manifestly excessive. The central issues in the appeal were whether the starting point for the sentence was appropriate and whether the various discounts applied were justified. The starting point for sentencing was found to be too high, and the discounts applied were also considered excessive. The Court found that a starting point of 21 months was more appropriate, given the level of violence and injury caused. Additionally, the Court found that the discounts for the difficulties of serving the sentence and for Elizalde's good character should have been smaller. Ultimately, the Court concluded that the sentence was manifestly excessive and allowed the appeal, substituting a sentence of 12 months' imprisonment.

Orders