Fogelman v Police - [2017] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2017-443-13, 14, 15 and 16 [2017] NZHC 1670

BETWEEN
PETER FOGELMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 July 2017

Counsel:

J C Hannam for Appellant
G N Milne for Respondent

Judgment:

20 July 2017

JUDGMENT OF THOMAS J

Introduction

[1] On 17 May 2017 Mr Fogelman was sentenced to four and a half years’ imprisonment on the following charges: threatening to kill (x4), wilful damage, injuring with intent to cause grievous bodily harm and aggravated assault.1

[2] He appeals against sentence on the basis that it is manifestly excessive because the starting point was too high.

Facts

[3] The injuring, aggravated assault and one of the threatening to kill charges are the result of an incident that occurred on 14 May 2016. Mr Fogelman went to his sister’s house and entered without permission. They were estranged from each other and had not seen each other for over two years. She asked him to leave but he
refused. He rolled a cigarette, and then advanced on her, telling her repeatedly that

1 R v Fogelman [2017] NZDC 10201.

FOGELMAN v NEW ZEALAND POLICE [2017] NZHC 1670 [20 July 2017]

she was dead. He cornered her against a wall and hit her across the face several times with the palm of his hand. He told her she was dead again, then said “here comes the big one”. He then punched her with all his force and the blow briefly rendered her unconscious. She tried to get away but fell through a glass door. She suffered significant facial injuries, a fractured jaw and, as a result of falling through the glass, several lacerations to her arm and hand.

[4] A neighbour, who Mr Fogelman had not met before, came to assist the first victim. Mr Fogelman punched him in the face and kicked him in the stomach. Mr Fogelman closed the door and locked the second victim outside. The victim kicked his way back through the front door. Mr Fogelman charged at him and punched him in the face, and a short but violent struggle ensued. With the assistance of some other nearby residents, Mr Fogelman was restrained. The second victim suffered a sore head and body.

[5] The other threatening to kill charges relate to a phone call Mr Fogelman had with another sister, where he threatened to kill all three of his sisters.

[6] The wilful damage occurred when Mr Fogelman was in the police cells. He became enraged and broke a window.

Sentence indication

[7] After setting out the facts, Judge Sygrove turned to the victim impact statements. The first victim did not remember exactly what happened as her mind blanks out at the events. She had been to see a psychologist. Her concussion had lifted and her thoughts were clearer, but the concussion was exhausting and she could not work. Her work was supportive. She said she was still terrified that Mr Fogelman would come for her.…

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 Fogelman v Police

Details

AGLC: Fogelman v Police [2017] NZHC 1670
Case: [2017] NZHC 1670
Decision Date: 20 July 2017

CaseChat Overview and Summary

Peter Fogelman appeals against his sentence on the basis it is manifestly excessive because the starting point was too high. He was sentenced to four and a half years’ imprisonment on various charges including threatening to kill, injuring with intent to cause grievous bodily harm and aggravated assault. The court accepted the starting point was appropriate given the number and seriousness of the aggravating factors. The court considered five aggravating factors: vulnerability of the victim, attack to the head, serious injury, home invasion and premeditation. The court was of the opinion that the presence of these factors justified the five year starting point. The court disagreed with the appellant’s submission that the home invasion and premeditation should not be considered discrete aggravating factors. The court considered the offending was of similar seriousness to cases where five year starting points were adopted. The court was also of the opinion that the end sentence was appropriate.

The court took issue with the treatment of the four charges of threatening to kill. The sentences for those charges were outside the range in all the circumstances. The court quashed and replaced the sentences in respect of all four charges of threatening to kill. The court imposed concurrent sentences of 12 months’ imprisonment in the case of the offending against the main victim during the serious assault and six months in respect of the other charges.

Orders