F v Police HC Dunedin CRI 2008 412 9

[2008] NZHC 473

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2008 412 9

F

Appellant

v

POLICE

Respondent

Hearing:         10 April 2008

Appearances: M Newell for Appellant

R D Smith for Respondent

Judgment:      10 April 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty at a status hearing to a charge of male assaults female, the appellant was sentenced to 160 hours community work and nine months supervision.  This appeal challenges the supervision component of the sentence.

[2]      The  offending  arose  out  of  a  domestic  argument  involving  car  keys. According to the police summary the appellant began to strangle the complainant and told her that if she did not give him the car keys he would push her out of the conservatory window.  It is stated that the complainant began to choke and gasp for

air.  The summary also states that when the appellant was spoken to by the police he

F V POLICE HC DUN CRI 2008 412 9  10 April 2008

admitted the facts as outlined and said in explanation that he was very angry at the complainant cheating on him.

[3]      This is the first time that the appellant has been involved in violence.   His previous record includes seven previous convictions for drink driving between 1977 and 2005 and convictions for attempted burglary and breach of supervision.  He is 48 years of age.

[4]      A number of glowing references, including a reference from the appellant’s former partner of 16 years, were before the District Court.  The victim’s advisor had also provided the Judge with a reasonably lengthy letter from the complainant expressing her views for the status hearing and traversing life with the appellant and the assault.  It seems that counsel for the appellant and the appellant were unaware of this letter and its existence came as something of a surprise when it was mentioned by the Judge.

[5]      When imposing sentence the Judge noted that society viewed charges of male assaults female seriously, that the appellant would be given credit for his guilty plea and for the absence of any previous convictions for offending of this nature.   The Judge then observed:

“[2] … You do, however have a number of previous convictions for breath blood alcohol related offending, which gives me some cause for concern.  You would do well to read the letter that has been written by the victim …”.

After that the Jude commented that at least the appellant has shown some insight into his offending by his plea and that the aggravating feature was that the appellant had grabbed his victim around the throat and began to choke her.   While the Judge accepted that this occurred in an emotionally volatile situation, he said that it was completely unacceptable behaviour and that:

“Some deterrent element is called for in the sentence.  Having regard to your previous convictions I

think some rehabilitative element is called for as well.  You will be convicted.  You will be sentenced to

160 hours community work.  You will also be sentenced to supervision for nine months on conditions that you undertake and complete training and treatment as directed by a Probation Officer to address causes of your offending.”

[6]      Mr  Newell  argued  that  the  imposition  of  supervision  was  inappropriate because there was no suggestion that alcohol was involved in the offending for which the appellant was being sentenced.  Mr Newell rightly pointed out that any suggestion to the contrary in the letter from the complainant could not be taken into account because the summary of facts represented the foundation for the sentencing. It was submitted by counsel that if there was a major concern about the possibility of alcohol being a problem it would have been appropriate to call for a probation officer’s report so that that aspect could be explored.

[7]      This is a very finely balanced matter.   There is strength in Mr Newell’s submission that there is no direct indication that alcohol played a part in this offending.   On the other hand, when imposing sentence the Judge was entitled to take into account the appellant’s previous record which plainly indicates an alcohol problem.

[8]      In the end it is a question of whether it is appropriate for this Court to intervene.  Having pondered the matter, I have reached the conclusion, albeit with some misgivings, that this Court should not intervene.   There was sufficient justification,  given  the  nature  of  the  offending  and  the  appellant’s  previous offending, for the sentence of supervision to be imposed.  While the overall sentence is relatively harsh, it could not be described as manifestly excessive and, despite Mr Newell’s best efforts, I am afraid that I have not been persuaded that the order for supervision is inappropriate.

[9]      The appeal is dismissed.

Solicitors:         M Newell, Dunedin

Crown Solicitor, Dunedin