Hendra v The Queen - [2017] NZHC 1652

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000029 [2017] NZHC 1652

BETWEEN
MELISSA JOY HENDRA

Appellant

AND

THE QUEEN Defendant

Hearing: 17 July 2017

Appearances:

B P Kilkelly for Appellant
M J Grills for Respondent

Judgment:

18 July 2017

JUDGMENT OF GENDALL J

Introduction

[1] On 17 May 2017, the appellant was sentenced by Judge Phillips in the District Court at Dunedin to two years and four months imprisonment on charges of injuring with intent to injure, assaulting a police officer, theft and possession of Class B drugs.1 The appellant now appeals her sentence.

Facts

[2] On 13 August 2016, the appellant went to her mother’s home, with whom she had been living. Her mother, the victim, had decided that she did not want the appellant to live with her any longer. She put the appellant’s belongings in the front yard for her to collect. The appellant and Ms Webb, her co-defendant, along with the appellant’s six year old son, arrived at the house. Ms Webb began moving the gear. However, the appellant went to the front door and pushed past the victim when she
opened it, knocking her to the ground. As the victim was lying on the floor, the

1 R v Hendra [2017] NZDC 10448.

HENDRA v THE QUEEN [2017] NZHC 1652 [18 July 2017]

appellant began to punch her about the head. The victim then moved to the lounge and tried to call the police but the appellant and Ms Webb prevented her.

[3] The appellant and Ms Webb pinned the victim to the sofa in a seating position. They then began to punch her in the head, pushing her down when she tried to stand up. The victim managed to get up and at this point Ms Webb discontinued the attack. The appellant then followed her mother, the victim, to the kitchen where she again knocked her to the ground. She then pushed the victim to the ground multiple times as she tried to get up. The appellant then picked up the victim’s puppy and said she was going to break its neck.

[4] As a result of the attack, the victim sustained grazes to the head and forehead and cuts. She suffers now from dizzy spells, and has also struggled emotionally and is unable to live at the house alone.

[5] As to the second incident concerned here, on 18 January 2017, the appellant was being held in police custody. She needed medical attention so was transported to hospital. A police officer, Constable Kitto, accompanied her. The appellant attempted to leave her bed so Constable Kitto had to restrain her. The appellant, while yelling abuse at her, stretched out and deliberately kicked upwards into the constable’s head. The blow was with some force and the constable suffered a swollen right ear and pain to her head and neck.

District Court decision

[6] In his sentencing decision, when considering the attack on the police constable, Judge Phillips noted that the appellant had said…

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 Hendra v The Queen

Details

AGLC: Hendra v The Queen [2017] NZHC 1652
Case: [2017] NZHC 1652
Decision Date: 18 July 2017

CaseChat Overview and Summary

Melissa Joy Hendra appealed her sentence in the High Court of New Zealand, Dunedin Registry, following a conviction for injuring with intent to injure, assaulting a police officer, theft, and possession of Class B drugs. The court was required to determine whether the sentence imposed by the District Court was appropriate, considering the starting points for the respective charges, the disparity in sentences between the appellant and her co-defendant, and whether the early guilty plea was adequately considered.

The court found that the starting point for the charge of injuring with intent to injure was appropriate, considering the aggravating factors such as premeditation, serious violence, attack to the head, vulnerability and age of the victim, and the number of attackers. The court also held that the six-month uplift for the charge of assaulting a police officer was reasonable given the circumstances. The disparity in sentences between the appellant and her co-defendant was deemed justifiable due to the differences in their respective roles and culpability in the offending. Furthermore, the court held that the District Court judge had adequately considered the early guilty plea by setting a global discount of 20 percent.

The court concluded that the appellant had not demonstrated that the sentence imposed was wrong or unjust, and therefore dismissed the appeal.

Order: The appeal is dismissed. No further orders.

Orders