Evans v Police HC CHCH CRI 2007-409-000248

[2008] NZHC 2158

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2007-409-000248

RICHARD JAMES EVANS

Appellant

v

POLICE

Respondent

Hearing:         7 February 2008

Counsel:         A Bailey for Appellant

R M Thomas for Respondent

Judgment:      7 February 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against sentence.  On 2 September last at 6 pm the appellant

was at home with his ex-wife and his 16 year old daughter. He had been drinking heavily. This upset his daughter who asked him to stop. He struck her across the face. She pushed him away. He pushed her back. He was swearing at her and slapping her a second time with an open hand. She slapped him back. He then punched her in the face repeatedly with both fists closed. One punch hit her nose causing it to start bleeding.  He then punched her in the stomach causing her to fall to the ground.

EVANS  V POLICE  HC CHCH CRI 2007-409-000248  7 February 2008

[2]      The mother helped her daughter up, took her outside where she blacked out, came to and called for help.  She was taken to Christchurch Hospital suffering from bruising to her face and nose with a chipped tooth and tender abdomen. She also spent three weeks at Princes Margaret Youth Inpatient Unit getting care and counselling for what had caused enormous anguish. In her victim impact statement

his daughter says she clearly loves him and does not want to see him in trouble again but at the same time does not want to be beaten up.

[3]      There were prompt guilty pleas. The Judge’s initial inclination was a sentence of a high number of community work hours, six months community detention with a curfew and 12 months supervision. However, the report from the Community Probation Service was not satisfactory as the proposed place of residence had an at risk child and the Service did not support community detention for that reason.

[4]      Mr Bailey has told me that he made a submission that the child was no longer there and in that sense the report was not current.   However, and this was at a later date,  I  should  say,  the  hearing  having  been  adjourned  to  consider  this,  the  Judge essentially also was concerned that the appellant had a significant alcohol addiction and  the  Judge  might  perpetuate  the  problem  by  sending  the  appellant  to  a  home environment.

[5]      The  Judge  also  was  concerned  with  the  aggravated  features  of  the  assault, particularly how it developed and how he repeatedly hit her.   He decided that this was a case where the sentence had to be both one of deterrence to deter this type of family violence and second to denounce his conduct - drunk, cowardly and aggressive towards a young woman. He took a starting point of nine months and after giving credit for the plea of guilty sentenced  the  appellant  to  six  months imprisonment on the one charge of male assaults female with special conditions for

six months at  the  end  date  that  he  take  such  treatment,  counselling,  program  and intervention as may be directed.

[6]      Mr Bailey argues that this decision is manifestly excessive and relies upon a decision of the Court of Appeal in R v Reihana CA 143/03 3 July 2003, a decision

which was not brought to the attention  of  the  sentencing  Judge. In  that  case

Mr Reihana had called at the address of the complainant.  They had previously been

in a relationship.  He was accustomed to visit.  There was a domestic incident and he punched the complainant in the left eye causing her to fall to the floor.  The incident involved  one  of  the  two  children  of  the  relationship,  a  boy  called  Nick,  who  was disarmed.  In this case the Court of Appeal said there was no tariff for offending male against female as the  circumstances of the commission of offences can vary. However, the Court went on to consider a number of cases.   The Court’s view are perhaps best encapsulated by setting out paragraphs 43 and 45:

[43]        There is no tariff for this offence. The circumstances of its commission and of offenders can vary greatly. Nonetheless we have reviewed a number of decisions of this Court  in relation to the  offence of assault on a female including R v Rennie CA281/91, decision 9 September

1991;   R  v  Morris  CA89/94, 25 May  1994; R v Baldwin  CA518/95,  4

December 1995 and R v Nixon CA87/01, 19 June 2001 in which sentences

of three months imprisonment, twelve months supervision, two months imprisonment and twelve months  imprisonment  (with  leave  to  apply  for

home detention)  were  either  upheld  or substituted  on  appeal.   The case  of

Nixon concerned a domestic  assault  which  culminated  in  the  complainant being kicked and injured as a result.  The appellant had previous convictions.

We are satisfied that the present sentence is beyond  the  range  of  penalties

generally imposed for this offence.

…

[45]     This was a serious offence. The appellant was told not to enter the complainant's home, but he persisted in doing so. The verdict in relation to count one indicates that the jury was satisfied that the appellant punched the complainant unexpectedly and in anger, not in self defence. His actions thereafter did not warrant criminal sanction.  The only mitigating feature was that this was a first conviction for an offence of violence. In all the circumstances we are satisfied that the sentence imposed was clearly excessive. The sentence is halved, that is a term of five months imprisonment is substituted for the original ten months.

So,  in  short,  the  Court  halved  the  sentence  substituting  a  term  of  five  months imprisonment for the original ten months.

[7]      The  distinction  between  Reihana  and  this  case  is  that  there  was  more  than one punch.   There was a build up in violence leading to a prolonged assault.   One must also take into account the consequential impact on the young girl and the time spent in Princes Margaret Youth Inpatient nit.

[8]      The Crown argue that although this was a very stern sentence it could not be judged to be manifestly excessive.  Ms Thomas, for the Crown, was not able to find any  other  cases  available  to  guide  the  Court.  This  is  a  difficult  case  to  decide because I am inclined to the view that had the sentencing Judge had the benefit of the Court of Appeal decision in Reihana he may well have taken a starting point below nine months.   Mr Bailey suggested that the starting point in this case ought to have been six months.   On the other hand, the Court of Appeal decision in Reihana says that there is no tariff  and it is  possible,  as  I have  just  indicated,  to  distinguish  the Reihana facts from this one.

[9]      The case of R v Nixon CA87/01 19 June 2001 is of some concern because in that case where there was a sentence of 12 months imprisonment with leave to apply

for  home  detention  there  was  a  history  of  domestic  violence  on  the  part  of  the convicted person which is not present here.  Then again, on the other hand, the Judge has in this case taken a starting point of nine months.

[10]     This is a close call but I am not satisfied that the appellant has been able to argue that the decision is manifestly excessive.  In the light of Reihana it is a higher sentence than I would have imposed but on appeal that is not the standard.   In the end I am driven to the conclusion that the appellant has not succeeded demonstrating that the decision was manifestly excessive and accordingly the appeal is dismissed.

Solicitors:
A J Bailey, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent