IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-181 [2014] NZHC 2217
BETWEEN BOSTJAN FRELIH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 September 2014 Counsel:
S D Oliver for the Appellant
NMH Whittington and S Navot for the RespondentJudgment:
12 September 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 12 September 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, Auckland
Public Defence Service, Auckland
FRELIH v POLICE [2014] NZHC 2217 [12 September 2014]
Introduction
[1] The appellant pleaded guilty to a charge under s 188(2) of the Crimes Act
1961 of wounding with intent to injure. On 2 May 2014 he was sentenced by Judge A J Fitzgerald in the District Court at Auckland to a term of imprisonment of two years and five months.
[2] The appellant appeals against that sentence and raises three issues:
(a) that the starting point of three years imprisonment was manifestly excessive;
(b) the Judge erred in failing to allow a discount for the appellant’s
remorse; and
(c) the Judge erred in failing to allow a discount for the appellant’s
previous good character.
Background facts
[3] On 1 November 2013 the appellant received a massage from the victim who is a masseuse working from her home address. At the completion of the massage, and for seemingly unknown reasons, the appellant pinned the victim to the massage table and stabbed her head six times using a Swiss Army pocket knife. When the victim attempted to stand up to defend herself the appellant pushed her against a wardrobe, breaking the wardrobe door off its hinges. It appears that the attack was halted by the intervention of the victim’s partner who was upstairs in the premises when the massage was provided.
[4] The implications for the victim were recorded by Judge Fitzgerald as follows:
[2] As a result of that attack, she suffered large gashes between one and three centimetres in length to the top of her head requiring a total of 18 stitches. As well as a physical injury suffered there was significant emotional harm caused to her. In her victim impact statement she refers to the deep effect both physically and mentally this has had. It was completely unprovoked. It happened in her own home and so one of the consequences
for her is a feeling of anxiety taking new clients in at home. As a result of those anxiety issues she is having to see a doctor and receives medication.
The District Court decision
[5] The Judge rejected a submission that the case fell within band 2 of Nuku v R,1 holding the view that the offending fell within category 3 because there were more than three aggravating features of the offending. He said:
[6] As I have mentioned this was a brutal and violent assault; it included attacking the victim’s head, using a weapon, there was serious physical and emotional harm caused to her and…
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CaseChat Overview and Summary
The court held that the starting point of three years imprisonment was not manifestly excessive, as the attack was brutal and violent, involved an attack to the victim’s head, the use of a weapon, and caused serious physical and emotional harm to the victim. The court also held that the Judge erred in failing to allow a discount for the appellant's remorse and in not providing a discount for previous good character. The court quashed the sentence of two years and five months imprisonment and replaced it with a sentence of two years and three months.
In conclusion, the High Court allowed the appeal in part and reduced the appellant's sentence from two years and five months to two years and three months. The court held that the starting point of three years imprisonment was not manifestly excessive but found that the sentencing Judge erred in failing to allow a discount for the appellant's remorse and previous good character.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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