Green v Police - [2017] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000034 [2017] NZHC 2378

BETWEEN
DARRYL CRAIG GREEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2017

Appearances:

A Dawson for the Appellant
R D Smith for the Crown

Judgment:

29 September 2017

JUDGMENT OF NATION J

[1] The appellant, Mr Darryl Green, was sentenced to two years one month imprisonment after pleading guilty to charges of injuring with intent to injure, assaulting a police officer and resisting arrest.1 He appealed that sentence, arguing it was manifestly excessive.

The offending

[2] Mr Green was visiting his brother who resided with the victim in shared accommodation. Mr Green did not know the victim before the visit. He had been drinking excessively throughout the day. Without warning or provocation, Mr Green came up behind the victim, who was in the kitchen preparing a meal, and attacked
him with three blows to his back and the rear of his head. When the victim turned

1 Police v Green [2017] NZDC 14080.

around, Mr Green punched him again. With clenched fists, Mr Green punched the victim five more times in the face, and the victim fell to the ground.

[3] Mr Green stood over the victim and verbally abused him as he tried to crawl out of the kitchen and the house. Shortly after he managed to escape, Police attended the address, where Mr Green had remained. Mr Green verbally abused the Police and threatened violence. As he was being placed in the holding cell, he thrust his leg backwards towards an officer, narrowly missing his leg. Mr Green then refused to be searched pursuant to arrest. He thrust his knee into the thigh of the officer attempting to carry out the search and had to be restrained by four officers.

[4] The victim had to have multiple stitches in his mouth, his face was bruised and swollen and he subsequently suffered from headaches. No officers were hurt. In explanation, Mr Green said the victim had been stealing his brother’s food and deserved to be punched in the mouth.

District Court decision

[5] Judge Phillips, after recalling the facts, noted Mr Green’s history of repeated driving offences, breaches of protection orders and breaches of supervision and release conditions. He noted the pre-sentence report that assessed Mr Green at a high risk of reoffending as a result of his lack of remorse and history of non- compliance with court orders. He noted the need to ensure consistency in sentencing as well as the need to hold the appellant accountable for what he described as an unprovoked attack on a “totally vulnerable person.”

[6] The Judge assessed the violence as at the higher end of the scale, falling on the cusp of bands 2 and 3 in the Court of Appeal’s guidance in Nuku v R.2 The injury level the Judge accepted was only moderate, but “the attack to the head” and the “vulnerability” of the victim…

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.

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Details

Case: [2017] NZHC 2378
Decision Date: 29 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Darryl Craig Green appealed against his two-year-one-month sentence for injuring with intent to injure, assaulting a police officer, and resisting arrest. The appeal centred on whether the sentence was manifestly excessive. Mr Green argued that the sentence was too high because the level of injury was low and the vulnerability of the victim was not as serious as the District Court had found. The Crown defended the sentence, arguing that the aggravating factors were correctly identified and given appropriate weight.

The High Court examined whether the starting point and the uplift for previous convictions and attitude were correctly determined. The court found that the District Court correctly identified the aggravating factors, such as the attack to the head, the vulnerability of the victim, and the level of violence. The court also found that the four-month uplift for previous convictions and attitude was justified based on Mr Green's history of offending and non-compliance with court orders. The High Court concluded that the sentence, while stern, properly reflected the offending and Mr Green's culpability and was not manifestly excessive. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the original sentence of two years and one month imprisonment be upheld.

Orders