Grace v Police - [2012] NZHC 3495

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-000086 [2012] NZHC 3495

BETWEEN MATTHEW GRAHAM GRACE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2012

Appearances: J Young for Appellant
CAA Anderson for Respondent

Judgment: 17 December 2012

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors/Counsel:
Marsden Woods Inskip & Smith : PO Box 146, Whangarei 0140 – DX AP24510
J Young, Barrister : PO Box 859, Whangarei 0140 – DX AP24611

GRACE V NEW ZEALAND POLICE HC CRI 2012-488-000086 [17 December 2012]

Introduction

[1] The appellant, who is 19, has appealed against a sentence of two years four months imprisonment on one charge of injuring with intent to cause grievous bodily harm, brought under s 189(1) of the Crimes Act 1961. Sentence was imposed in the District Court at Whangarei on 13 November 2012.1

Facts

[2] On 13 January 2012 at about 1:30am, the appellant and his 16-year-old co- offender SF were at a family function. The appellant was 18 at the time.

[3] The victim, who was 46, arrived at the function to pick up his partner. It is said in the summary of facts that the appellant attempted to pick a fight with the victim, but another person intervened and things settled down. The victim stayed for approximately 30 minutes before he and his partner left the function. The offenders had left just before they did and waited at an adjacent property, apparently in preparation for an assault on the victim.

[4] When the victim and his partner walked past, the offenders punched the victim in the back of the head five or six times. The victim fell to the ground and was then repeatedly kicked in the face, neck and his back for two to three minutes as he lay on the ground. The victim tried to protect his face by covering his head with his arms.

[5] The victim managed to get up, he recognised SF as one of his attackers. He chased SF, who was too fast. The victim then turned around to go back to his partner and as he did, the appellant threw a large rock at him which hit the victim in the face,
knocking him unconscious.

1 Police v Grace DC Whangarei CRI-2012-088-1485, 13 November 2012.

[6] When the victim regained consciousness, he walked to where his partner was standing. The offenders then started throwing bottles at him but fortunately none of them hit him.

[7] When spoken to, the appellant admitted the facts as outlined, except that he claimed the rock had hit the victim’s chest, not his face. He also said it was SF’s idea. The appellant was originally charged with wounding with intent to cause grievous bodily harm, under s 188(1) of the Crimes Act, but entered a guilty plea when the charge was reduced to one under s 189(1).

[8] As a result of the attack, the victim was hospitalised and required surgery to stitch a large gash in his upper lip. His…

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 Grace v Police

Details

AGLC: Grace v Police [2012] NZHC 3495
Case: [2012] NZHC 3495
Decision Date: 17 December 2012

CaseChat Overview and Summary

In the case of Grace v Police, the appellant, Matthew Graham Grace, appealed against a sentence of two years and four months imprisonment for injuring with intent to cause grievous bodily harm, under s 189(1) of the Crimes Act 1961. The sentencing was imposed in the District Court at Whangarei on 13 November 2012. The appeal was heard in the High Court on 17 December 2012, and the oral judgment was delivered by Andrews J on the same day.

The legal issues in the appeal were whether the sentence was manifestly excessive, and whether the starting point for the sentence was appropriately set. The appellant's counsel argued that the sentence was excessive given the appellant's previously clear record, his offer to attend restorative justice, his early guilty plea, his written apology, his difficult and complicated personal circumstances, and the disparity with his co-offender who had received a discharge under s 282 of the Children, Young Persons and their Families Act 1989. The counsel also argued that the Judge erred in setting the starting point by applying Taueki instead of the bands set out for sentencing in cases where the intent is to injure, rather than to cause grievous bodily harm, in the Court of Appeal’s judgment in R v Harris.

The High Court found that the Judge had taken into account the appellant's personal circumstances, and that the discount applied for the appellant's personal factors was within range. The Court also found that the Judge did not err in setting the starting point in this case by reference to Taueki, and that the starting point he adopted was not too high. However, the Court found that the sentencing Judge was not aware of the appellant's counselling with Mr Osborne, nor was he aware of the very positive outcome of that counselling. The Court was satisfied that if the Judge had been aware of the counselling, and the appellant's response to it, he would have taken a different approach to sentencing and that a greater discount would have been given to reflect the substantial progress the appellant has made without any Court intervention.

Accordingly, the Court allowed the appeal against sentence and quashed the sentence of two years and four months imprisonment. In its place, the Court imposed a sentence of two years imprisonment and directed that, in the event that a suitable address for a sentence of home detention is available, then the sentence of two years imprisonment is to be replaced by a sentence of 12 months home detention. The home detention sentence is to be subject to the standard conditions for home detention, as well as special conditions that the appellant is to attend and complete an appropriate alcohol and drug counselling or treatment programme, undertake and complete any other counselling, treatment, or educational programme, and not to purchase, possess, or consume alcohol or illicit drugs for the duration of the sentence of home detention.

Orders