Graham v Police - [2014] NZHC 2112

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-36 [2014] NZHC 2112

BETWEEN
GABRIEL JOHN GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 September 2014

Counsel:

M McGhie for Appellant
J Rhodes for Respondent

Judgment:

1 September 2014

ORALJUDGMENT OF KATZ J [Sentence Appeal]

Solicitors: M McGhie, Whakatane
Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

GRAHAM v NEW ZEALAND POLICE [2014] NZHC 2112 [1 September 2014]

Introduction

[1] At about midnight on 10 November 2013, Gabriel Graham was at a bar in Opotiki. An altercation erupted within the bar which involved Mr Graham’s cousin and the victim. Mr Graham walked up to the victim and punched him in the face. As a result of the blow, the victim lost four of his teeth and received a large laceration to his top lip. The victim has had dental treatment for the four missing teeth and was required to have two more teeth removed. Mr Graham said he hit the victim because he thought the victim was going to assault his cousin.

[2] Mr Graham pleaded guilty to a charge of assault with intent to injure, under s193 of the Crimes Act 1961. The maximum penalty is three years’ imprisonment. Mr Graham was sentenced in the District Court at Opotiki to two years’ imprisonment. He appeals that sentence on the basis that it is manifestly excessive. He says in particular that a two year term of imprisonment is unjust for a “one punch” assault and that the starting point adopted by the sentencing Judge was too high. Further, he says that a discount should have been allowed for his remorse.

District Court Decision

[3] The sentencing Judge canvassed the background facts and identified the aggravating factors of the offending as the extent of the injuries to the victim, the fact that the blow was to the face and the physical, emotional and financial impact the offending had on the victim. Further, the offending occurred while Mr Graham was subject to release conditions.

[4] In relation to personal aggravating factors, the Judge listed Mr Graham’s “appalling list of convictions for violence” and drew the conclusion that Mr Graham was “too willing” to resort to violence.1 In terms of personal mitigating factors, the Judge noted the guilty plea, the apology to the family of the victim and Mr Graham’s employment.

[5] The Judge noted that community based sentences had proved to be an ineffective response to Mr Graham’s offending previously. He acknowledged that the assault constituted only one blow. Nonetheless, it was a significant blow to the head.

[6] A starting point of two years’ imprisonment was adopted. Taking into account Mr Graham’s previous convictions, that starting point was uplifted by six months. A 20 per cent guilty plea discount was awarded, as the Judge considered that it was a belated guilty plea to a charge that was amended. This brought the sentence back down to two years.

[7] In light of Mr Graham’s previous convictions for violence, the Judge took the view…

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.

Keep reading for free

Create a free CaseChat account to read Graham v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2112
Decision Date: 1 September 2014

CaseChat Overview and Summary

Gabriel Graham appeals against his sentence of two years’ imprisonment for assault with intent to injure, which he claims is manifestly excessive. The High Court was required to determine whether the sentence imposed by the District Court Judge was within the range that can properly be justified by accepted sentencing principles, or whether it was manifestly excessive. The Court considered the relevance of the seriousness of the victim's injuries, the fact that the attack was to the head, and the single punch nature of the offending. The Court found that a starting point of 18 months’ imprisonment would be appropriate, taking into account the cases cited and the single punch nature of the assault. The Court further found that a six-month uplift for prior convictions and the fact that the current offending occurred while Mr Graham was subject to release conditions was appropriate, bringing the sentence to 24 months. Some discount was justified for Mr Graham’s remorse and offer to pay reparation, and a five per cent discount was given. The Court found that the 20 per cent discount for the guilty plea allowed by the sentencing Judge was appropriate. The Court concluded that the sentence imposed by the District Court was manifestly excessive and quashed it, replacing it with a sentence of 18 months’ imprisonment.
The Court ordered that the appeal is successful to the extent that the sentence of two years’ imprisonment imposed in the District Court is quashed and replaced with a sentence of 18 months’ imprisonment. The standard and special conditions of release imposed by the District Court Judge at [18] of his judgment remain in force, as does his order for reparation.

Orders