Frelih v Police - [2014] NZHC 2217

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 Respondent

Judgment:

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…

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 Frelih v Police

Details

AGLC: Frelih v Police [2014] NZHC 2217
Case: [2014] NZHC 2217
Decision Date: 12 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Bostjan Frelih appealed against his sentence for wounding with intent to injure. The appellant, who had no prior convictions, pleaded guilty to the charge and was sentenced to a term of imprisonment of two years and five months by Judge A J Fitzgerald in the District Court at Auckland. Frelih raised three issues on appeal: whether the starting point of three years imprisonment was manifestly excessive, whether the sentencing Judge erred in failing to allow a discount for the appellant's remorse, and whether the Judge erred in failing to allow a discount for the appellant's previous good character. The appellant submitted that the starting point of three years imprisonment was manifestly excessive and that the Judge should have allowed a discount for his remorse and previous good character. The Crown contended that the starting point was within the range reasonably available to the sentencing Judge and that there was no error in the Judge's decision not to allow a discount for the appellant's remorse or previous good character.

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