Faith v Police - [2018] NZHC 1576

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-27 [2018] NZHC 1576

BETWEEN
MICHAEL SCOTT FAITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 June 2018

Appearances:

P B McMenamin for Appellant S L Dayal for Respondent

Judgment:

28 June 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Mr Faith pleaded guilty to charges of burglary, theft, dishonestly interfering with a vehicle, wilful damage, possession of instruments for conversion, two breaches of a protection order, two counts of male assaults female and two counts of intentional damage. On 14 November 2017, he was sentenced to a total of two years and four months imprisonment.1 He appeals this sentence, saying it is manifestly excessive.

1 Police v Faith [2017] NZDC 29768.

FAITH v NEW ZEALAND POLICE [2018] NZHC 1576 [28 June 2018]

Facts

[2] On 7 August 2017, in daylight hours, Mr Faith went to a property in suburban Christchurch. He entered a shed and stole vehicle batteries valued at $1,500.

[3] On 13 August 2017, he entered a vehicle parked on a suburban street and stole loyalty and fuel cards. He used a screwdriver to break the ignition barrel but fled when disturbed. He was subsequently apprehended by police with a backpack containing the stolen cards and numerous tools.

[4] On 15 September 2017, a protection order was served on him relating to his former partner.

[5] On 21 September 2017, while on bail, Mr Faith went to the address of his former partner’s step-mother. His former partner and her step-mother were there. He found his former partner in a bedroom. He verbally abused her and struck her twice in the head. He put a pillow over her face for approximately two minutes while continuing to abuse her, and punched her in the head twice more. He was asked by the step-mother to leave, but refused. Instead, Mr Faith followed his former partner into the kitchen, continuing to abuse her. He attacked her again, punching her on the left cheek. She was knocked unconscious and fell to the floor.

[6] He returned in the early hours of 22 September 2017 and broke a window to gain entry. He smashed the step-mother’s cell phone and punched his former partner in the arm and body. When pushed out, he threw a bucket of paint over the side of the house. He went to the rear of the property and smashed the windows of the step-mother’s car. He returned later in the morning and was arrested.

District Court sentencing

[7] The Judge took a starting point of two years for the offending on 21 and 22 September 2017, for repeated violence, the blows to the head and suffocation. These acts were in breach of the protection order and aggravated by spiteful damage to the house, cell phone and car.

[8] An uplift of ten months for the burglary and six months for the vehicle related offending on 13 August 2017 applied, as distinctly separate…

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.

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Details

Case: [2018] NZHC 1576
Decision Date: 28 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Michael Scott Faith appealed against his two-year and four-month imprisonment sentence, arguing it was manifestly excessive. The sentence was imposed for a series of offences, including burglary, theft, dishonest interference with a vehicle, wilful damage, possession of instruments for conversion, breaches of a protection order, and male assaults on a female. The sentencing judge took a starting point of two years for the repeated violence and breach of the protection order, and applied uplifts for other offending and aggravating factors. The appellant's counsel argued that the starting point and uplifts were excessive, and that the wishes of the victim should be taken into account. The Police argued that the sentence was within range and appropriately reflected the seriousness of the offending.

The court considered whether there was an error in the imposition of the sentence that warranted a different sentence. The court found that the starting point of two years for the totality of the offending was appropriate, given the violence and disregard for the protection order. The uplifts were within range, and the removal of one uplift did not affect the overall sentence. The court did not consider the victim's statement required adjustment to the sentence, as it was common for victims to change their minds in domestic violence cases. The sentence was not manifestly excessive, and the appeal was dismissed.

Orders