Grace v Police
[2014] NZHC 3045
•2 December 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-000042 [2014] NZHC 3045
BETWEEN WILLIAM ADAM GRACE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 December 2014 Appearances:
TeK W H Puriri for Appellant
M A Jarman-Taylor for RespondentJudgment:
2 December 2014
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Whangarei
Copy to: TeK W Puriri, Whangarei
GRACE v NEW ZEALAND POLICE [2014] NZHC 3045 [2 December 2014]
[1] William Adam Grace pleaded guilty to charges of injuring with intent to injure, breaching a community detention sentence, breaching supervision order and breach of a protection order.
[2] On 18 September 2014 Judge Murray Hunt in the District Court at Kaitaia sentenced Mr Grace to 27 months’ imprisonment. Mr Grace appeals against the sentence.
[3] I take the background facts from the Judge’s summary. At about 7.40 in the evening on 26 June this year Mr Grace came home intoxicated. The victim, with her four young children, was at home. Mr Grace said to her, “I feel like giving someone a hiding, do you want it to be you?” Mr Grace then spoke to the victim in derogatory terms. Mr Grace then went away to cook some food. The victim remained sitting watching television with her back to him. Mr Grace continued with the abuse and became annoyed at the fact the victim was ignoring him. Without warning he backhanded her to the right side of her forehead causing her to cry and to go into another room where she called the police.
[4] The victim barricaded herself in the room. Mr Grace forced the door open and managed to get his body halfway through the door. He hit the victim on the top of her head with his hand. She screamed, placed her arms over her head to try and protect herself and then Mr Grace bent over and bit her forearm hard for about four seconds. She thought Mr Grace was going to tear the skin from her arm with his teeth. She screamed out in pain. Mr Grace only stopped because the children in the house began screaming too. He then continued to threaten her, made her flinch and drop to the ground in fear.
[5] The victim sustained injuries including a bite mark with teeth lacerations, swelling and bruising to her forearm and a tender and slightly swollen right forehead.
[6] At the time there was a protection order in force, it having been granted on 26
March 2014. In addition, on 12 March 2014 Mr Grace had been convicted on a charge of male assaults female and sentenced to supervision for one year and to
community detention for five months. He breached the terms of both his community detention and supervision.
District Court decision
[7] The Judge took as the lead offence the injuring with intent to injure. Taking account of the fact the assault occurred while a protection order was in force he fixed a starting point of two years and then uplifted that by 12 months to take account of the other aggravating aspects to Mr Grace’s behaviour relating to previous offending and failing to engage over supervision and other offending. From the resultant 36 months the Judge gave Mr Grace a credit of 25 per cent for the guilty pleas. He considered Mr Grace was not genuinely remorseful and declined to accord any further credit which led to the end sentence of 27 months’ imprisonment.
The appeal
[8] Mr Puriri notes that the Judge referred to R v Taueki1 rather than the more recent case of Nuku v R2 which provides express guidance when sentencing for offending involving intent to injure. Nevertheless counsel properly conceded that there was nothing in this particular point and that the starting point of two years for
the injuring with intent could not be challenged, even if Nuku was applied.
[9] The appeal is pursued on the basis that the uplift of 12 months was in this case manifestly excessive leading to a resultant end sentence that was itself manifestly excessive and so in error. Mr Puriri submitted that no more than six months should have been added to the start point of two years with the resultant end sentence after taking account of the guilty plea of 22½ months.
[10] He referred to a recent decision of Moore J in Ransfield v Police3 where the Judge allowed an appeal reducing the sentence from 27½ months to 20 months’ imprisonment for offending which, counsel submitted, was less serious than the
present.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 Ransfield v Police [2014] NZHC 1046.
[11] Section 250 of the Criminal Procedure Act 2011 applies. The appeal must be allowed if the Court is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed. Otherwise the Court must dismiss the appeal.
[12] Mr Puriri was correct not to pursue a challenge to the starting point taken for the injuring with intent to injure offence. At [37] and [38] the Court in Nuku identified bands to apply to offending involving intent to injure. Band 2 provides for a start point of up to three years’ imprisonment where three or fewer of the aggravating features listed at [31] of Taueki are present. In the present case the violence inflicted upon the victim was both unprovoked and gratuitous. The violence involved an attack to the head. The victim was also vulnerable. While perhaps falling short of premeditation in terms of actual planning, it appears from the summary that Mr Grace had it in mind to assault the victim. His opening exchange with her indicated his intention. It is clear that the fact this was a domestic situation and that Mr Grace may have been influenced by alcohol at the time are factors which cannot outweigh the public interest in the Court dealing with offending of this nature, which regrettably is all too common.
[13] In Mr Ransfield’s case the assault was on a child. Mr Ransfield also breached intensive supervision and community work orders. Having regard to two previous decisions of Kojeunikov v Police and Tiplady-Koroheke v R4 the Judge considered the end sentence imposed on Mr Ransfield was manifestly excessive considering the totality of the offending. As to those cases, I note that in Tiplady- Koroheke v R the Court approved a start point of two years but adjusted the sentence
because it considered the uplift for previous convictions was too high.
[14] However, in the present case I consider an uplift was warranted for a number of reasons:
(a) to take account of the totality of the offending;
(b)to reflect the fact that the offending occurred while subject to a sentence; and
(c) to reflect the previous convictions for relevant similar offending.
[15] Even accepting the Judge took account of the breach of the protection order in fixing the start point of two years, the additional offending for the breach, community detention and supervision, would have supported an uplift of four to six months. In addition, however, Mr Grace’s previous history discloses a propensity for violence and, concerningly, assaults on females. He has three previous convictions for male assaults female or common assault in a domestic situation, two of them within two years of this offending. That previous offending would, on its own, have supported an uplift of three to six months. Further, there was the fact that Mr Grace offended whilst subject to a sentence. In the circumstances, and taking account of those factors I am not persuaded that the uplift of 12 months was not available to the Judge in this case. The adjusted start point of three years was well open to the Judge.
[16] The Judge gave the maximum discount available for the guilty plea. In the circumstances of this case he was quite entitled to reject the suggestion of remorse as not genuine. The Supreme Court have made it clear in Hessell v R5 that any additional discount or reduction in the sentence for remorse must be for genuine remorse.
Result
[17] The appeal must be dismissed.
Venning J
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