Hendry v Police - [2012] NZHC 3581

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-000057 [2012] NZHC 3581

BETWEEN DALE ELIZABETH MARGARET HENDRY
Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2012

Appearances: K L McHugh for the appellant
R W Donnelly for the respondent

Judgment: 20 December 2012

JUDGMENT OF CLIFFORD J

[1] Ms Hendry pleaded guilty in the District Court at Invercargill on

28 September 2012 to one charge of assault on a child (s 194(a) Crimes Act 1961). The maximum penalty for this offence is two years’ imprisonment. She was sentenced on 9 November by Judge M B Turner to two months’ home detention, with six months’ post-detention conditions. Ms Hendry now appeals that sentence as being manifestly excessive.

Facts

[2] Ms Hendry’s victim was her then two year old grandson, the child of her daughter. Ms Hendry had apparently been looking after the little boy, and had returned him to his parents’ home shortly after midday on Wednesday 29 August
2012. She had been drinking before her arrival at that address, and continued to do so with her daughter’s partner, the father of the little boy. The little boy began jumping on some furniture. His father told him to go to his bedroom. He did so.
Ms Hendry followed the child to the bedroom and remonstrated with him. She then

HENDRY v POLICE HC INV CRI-2012-425-000057 [20 December 2012]

slapped him across the left side of his face with an open hand. The force used was sufficient to leave a print mark on the little boy’s face. He began to cry. When the little boy’s father asked what was going on, Ms Hendry declined to answer. She was then asked to leave the address but initially refused to do so. She only left when the police were called.

[3] When spoken to by the police, Ms Hendry acknowledged slapping the child. She said she was remorseful for her conduct. She explained her behaviour on the basis that the little boy had spat at her and needed to be disciplined. The little boy has, I was told, now turned three.

[4] Ms Hendry is 55 years old. She has previously appeared before the Court in

2008 when she was sentenced to nine months’ supervision for convictions involving three assaults on family members, namely her daughter, her daughter’s partner and her son. Ms Hendry also has a number of previous convictions for drink/driving and dishonesty offending for which she has received a range of non-custodial sentences.

The sentencing decision

[5] The Judge, as I think was appropriate, took a stern view of Ms Hendry’s behaviour. As he put it, Ms Hendry had assaulted her two year old grandchild, a most vulnerable member of society entirely dependent on those who cared for him for all his needs, both physical and emotional. Ms Hendry had physically struck him. The Judge drew attention to s 9A of the Sentencing Act 2002, which requires the Court to take into account a number of specific aggravating factors in…

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 Hendry v Police

Details

AGLC: Hendry v Police [2012] NZHC 3581
Case: [2012] NZHC 3581
Decision Date: 20 December 2012

CaseChat Overview and Summary

The appeal heard by Clifford J in the High Court of New Zealand concerned the sentence handed down to Ms. Dale Elizabeth Margaret Hendry by Judge M B Turner in the District Court at Invercargill. Ms. Hendry had pleaded guilty to assaulting her two-year-old grandson, an offence under section 194(a) of the Crimes Act 1961. The maximum penalty for this offence is two years' imprisonment. Judge Turner sentenced Ms. Hendry to two months' home detention, with an additional six months of post-detention conditions, which she now appeals as manifestly excessive.

The primary legal issue before the Court was whether the sentence imposed by Judge Turner was appropriate and not manifestly excessive. The Court needed to consider whether the sentence of imprisonment was justified and, if so, whether the term of the sentence was excessive. The Court also needed to consider the appropriate sentence in light of the mitigating factors presented.

Clifford J began by noting that the Judge had taken a stern view of Ms. Hendry’s behaviour, considering her actions as a breach of trust and violence against a vulnerable child. The Court acknowledged the importance of section 9A of the Sentencing Act 2002, which highlights specific aggravating factors in cases involving violence against children under 14 years of age. Clifford J concluded that while the Court would not tolerate domestic violence against children, a sentence of imprisonment was not necessarily the inevitable consequence of such offending. The Court found that the term of the sentence imposed was not manifestly excessive, though it found that a three-month uplift for previous domestic violence offending was excessive, and that a one-month uplift was more appropriate. Consequently, Clifford J considered that a sentence of six weeks’ home detention would have been appropriate. However, given the changes in Ms. Hendry’s domestic situation and her apparent efforts to address her alcohol problems, Clifford J substituted the sentence of home detention with 100 hours of community work and six months of supervision.

The final orders of the Court were to allow the appeal, and in place of the sentence of home detention followed by supervision, to substitute a sentence of 100 hours’ community work and six months’ supervision. The Court also noted the unusual circumstances of the appeal and the impact of Ms. Hendry's release pursuant to section 399(3) of the Crimes Act 1961, a matter that might be reconsidered by the legislature.

Orders