Hannay v Police - [2014] NZHC 2015

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-0022 [2014] NZHC 2015

BETWEEN
DONOVAN GENE HANNAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 August 2014

Appearances:

E J Forster for appellant
M Mitchell for respondent

Judgment:

25 August 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] After a Judge-alone trial, Mr Hannay was sentenced by Judge Adeane in the District Court at Napier to an overall term of imprisonment of three years and three months on two charges of wounding with reckless disregard and one charge of male assaults female.1

[2] Mr Hannay now appeals that sentence as being manifestly excessive.

Mr Hannay’s offending – the facts

[3] Judge Adeane presided over Mr Hannay’s trial. The following is the Judge’s assessment of the facts of Mr Hannay’s offending:

[2] The circumstances were gone into at some length at trial. Essentially Mr Hannay was a guest, whether invited or not, at a New Year’s Eve party. Some minor item of household damage had occurred and Mr Hannay was asked to leave the property. That request was made by a

1 R v Hannay DC Napier CRI-2014-041-000003, 26 May 2014.

HANNAY v POLICE [2014] NZHC 2015 [25 August 2014]

female on behalf of another female who was the head tenant. There were a number of people who were invited and a number of people who had apparently simply arrived but whose presence did not cause any concern until this item of damage occurred.

[3] On being asked to leave the defendant’s own evidence is that he became stubborn. Other witnesses have described him as “flipping out.” The long and short of it is that he declined to leave the property and became engaged in an argument.

[4] One of the females to whom I have referred went to shepherd him from the property. The evidence is that he then advanced on that woman. A male guest present intervened, stepped in and on his evidence was punched. He concedes then pushing Mr Hannay and turning round to withdraw when he became aware that he had been struck with an object to the back of his head. It turns out to be common ground that that object was a heavy drinking glass. It was in the hand of Mr Hannay and it struck the first complainant causing a significant laceration to the back of his head such that it required surgical repair.

[5] In the seconds that followed Mr Hannay then struck another blow with the jagged glass to the forehead of the second victim who was a female. After this and while leaving the property he punched the hostess in the face with the result that he faces the three charges to which I have already referred.

[6] There was some evidential contest concerning the way in which the first of the female victims was struck, whether in an independent blow or whether as collateral damage to the blow struck to the first complainant’s head. In the circumstances and given the resolution…

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: [2014] NZHC 2015
Decision Date: 25 August 2014

CaseChat Overview and Summary

Donovan Gene Hannay appealed against his sentence in the High Court of New Zealand. Hannay had been found guilty by Judge Adeane in the District Court at Napier of two charges of wounding with reckless disregard and one charge of male assaults female. The appeal was against the sentence of three years and three months' imprisonment imposed by Judge Adeane. Hannay contended that the sentence was manifestly excessive. The central issue before the court was whether the sentence imposed by the District Court Judge was manifestly excessive. The court had to consider whether the District Court Judge applied the wrong sentencing principles and, if so, whether this led to an excessive sentence.

The court found that the Court of Appeal's guideline judgment in Nuku did not, on its terms, apply to Hannay's offending. Sentencing for reckless disregard was likely to be more straightforward where guidance was obtained from other sentences for that type of offending, rather than directly from Nuku. The court found that when Nuku was applied by analogy to reckless disregard offending, care would need to be taken to account for the significance of the different intent. The court found that the District Court Judge had applied Nuku directly, and without adaptation. The court found that the starting point sentence adopted by the District Court Judge for Hannay's offending was manifestly excessive and the appeal was allowed. The sentence of three years and three months' imprisonment was quashed and replaced with a sentence of two years and four months' imprisonment.

Orders