F v The King - [2024] NZHC 227

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-74

[2024] NZHC 227

BETWEEN
F

Appellant

AND

THE KING

Respondent

Hearing: 16 February 2024

Appearances:

B Kilkelly for Appellant R Bates for Respondent

Judgment:

20 February 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 20 February 2023 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

F v R [2024] NZHC 227 [20 February 2024]

[1] F was sentenced to a term of three years and seven months imprisonment by Judge Robinson after pleading guilty to a series of family violence-related charges in the Dunedin District Court. His appeal is brought on the basis the sentence was manifestly excessive.

Factual background

Assault on a child1

[2] On an unknown date between 31 January 2022 and 1 May of that year, F was at home with his then five-year-old son, with whom he has shared custody. Also present was his then fiancé, who was to be the victim of later offending, and three other young children. F was angry as a result of an earlier argument with his fiancé when the son approached the fiancé and asked if she would be his girlfriend. F inexplicably became enraged and punched the child in the upper arm or the upper torso area causing him to lose his balance and fly backwards. The fiancé intervened and removed the child, who received no injuries.

Assault in a family relationship2 and strangulation3

[3] On 27 February 2023, F and his wife were at a supermarket. They had a minor argument which continued in their vehicle while driving home. F punched his wife twice in the ear with sufficient force to cause her earrings to break. The vehicle came to a stop and F walked home. When he arrived at the address, the argument continued.

[4] F grabbed his wife’s hair and pushed her to the ground. He dragged her approximately six metres through the lounge, on her back, down the hallway and into a bedroom. He punched her in the back of the head twice. After the victim rolled onto the bed, F grabbed her by the throat with two hands and applied pressure to her neck. She attempted to scream for help. He used one hand to cover her mouth and the other to apply pressure to her neck, compressing her airway. The force caused the victim to lift her torso as F continued to apply pressure in a downwards motion on her neck.

1      Crimes Act 1961, s 194(a) — maximum penalty of two years’ imprisonment.
2      Section 194A — maximum penalty of two years’ imprisonment.
3      Section 189A(b) — maximum penalty of seven years’ imprisonment.

[5] The strangulation continued for not…

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 F v The King

Details

AGLC: F v The King [2024] NZHC 227
Case: [2024] NZHC 227
Decision Date: 20 February 2024

CaseChat Overview and Summary

The appeal, brought by F, challenges the sentence imposed by Judge Robinson in the Dunedin District Court, which involved a term of three years and seven months imprisonment. F argues that the sentence is manifestly excessive, focusing on the starting points for the 2022 assault on his son and the 27 February 2023 strangulation and assault charges. The court was tasked with determining whether the starting points for these charges were justified and whether the overall sentence was manifestly excessive.

The court reviewed the appeal, focusing on the starting points and uplifts for the various charges, particularly the strangulation charges. The sentencing Judge considered the vulnerability of the victim, the extent of the violence, and the enduring harm caused by the strangulation. The court considered the aggravating features of the offending, including the victim's vulnerability, the extent of violence, and the psychological harm. The court also noted that the sentence included a significant discount for totality, which it considered slightly lenient. The court concluded that the overall sentence, taking into account the totality discount, was not manifestly excessive, and thus the appeal was dismissed.

The appeal is dismissed.

Orders