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 cases involving violence against a child under 14 years of age.  As relevant here they include the defencelessness of the victim, the magnitude of the breach of a relationship of trust between the victim and offender and any serious or long-term

physical or psychological effects from the harm caused. The Judge concluded:1

Domestic violence in all its forms will not be tolerated by the Court. Domestic violence perpetrated against children will not be tolerated by the Court. Your offending calls for a short term of imprisonment.

[6]      The Judge took a three month starting point, uplifted that by a further three months for Ms Hendry’s previous domestic violence offending and then allowed a full discount of 25 per cent, thus resulting in an end sentence of four months’ imprisonment.  The Judge then considered that it was appropriate that Ms Hendry be sentenced to home detention, rather than imprisonment, and imposed a term of two months’ home detention, to be followed by special conditions for a period of six months.

Grounds of appeal

[7]      Ms Hendry essentially argues that the Judge was wrong to conclude that her offending called for a sentence of imprisonment, which is a necessary precondition for the imposition of a sentence of home detention.  With reference to a number of Court of Appeal and High Court decisions, Ms McHugh for Ms Hendry argued that, as the original pre-sentence report had recommended, the appropriate sentence was one of a conviction with an order that Ms Hendry come up if called upon.

[8]      By  reference  principally  to  the  significance  of  the  aggravating  factors identified in s 9A of the Sentencing Act 2002, being here the defencelessness of this little boy, the breach of trust involved in his grandmother’s offending and the possibility  of  harm  involved,  Mr Donnelly  for  the  respondent  submitted  that  a sentence of imprisonment was available, and that the term of that sentence identified by the Judge was not manifestly excessive.  Mr Donnelly referred me in particular to

one of the Court of Appeal judgments relied on by Ms Hendry, S v R,2 in which a two

month sentence of home detention was upheld on a representative charge of assault on a two year old, reflecting the offender having slapped the child on the mouth on regular occasions over a ten month period.

Analysis

[9]      The Court of Appeal decision in H v R shows that whilst the Courts will not tolerate physical violence against children, of whatever age, at the same time a

sentence of imprisonment is not the inevitable consequence of such offending.3   But that is not the issue in this appeal. There is nothing in the Judge’s decision to suggest that he took that approach.   Rather, in my view he responded to the particular circumstances of this offending.  Mr Donnelly submitted that an important aspect of the cases referred to by Ms McHugh – all of which I have read and considered4  – was that they involved situations where parents or caregivers were endeavouring to discipline a child, and where an otherwise appropriate disciplinary response went too far.  This was, I accept, the situation in H v R.  There the child victim was eight years of age and had been diagnosed as suffering from Attention Deficit Hyperactivity Disorder with Aspergers Syndrome.  That condition had given rise to a number of behavioural difficulties over a period of years.  The incident which led to the assault

involved the child having had sexual contact with his female cousin, which one of the two offender caregivers involved described as “the straw that broke the camel’s back”.  In that case, on appeal from conviction in the District Court the High Court had granted a discharge without conviction for one of the two offenders, but not the second.   On a second appeal the Court of Appeal also similarly discharged the second offender.   But it was not, in my view, necessarily a common feature of all those cases.  Take, for example, the far more serious case of S v R, where a sentence of 11 months’ home detention was quashed by the Court of Appeal and a sentence of

9 months’ home detention substituted.  The offending there comprised a wide range of physical abuse against three victims including, in the case of the two year old victim H to which I have already referred, slapping on the mouth on a regular basis over some ten months.

[10]     By my assessment, therefore, and particularly taking account of the fact that Ms Hendry had previous domestic violence convictions, that she had been drinking on  the  day  in  question  and  that  her  actions  cannot  easily  be  understood  as “considered discipline” gone too far, I am not persuaded that a sentence of imprisonment  in  and  of  itself  would,  as  in  effect  Ms McHugh  submitted,  be  a manifestly excessive one as regards this offending.  I therefore turn to the term of the

sentence imposed.

3      H v R [2012] NZCA 198.

4      H v R supra; T v Police [2012] NZHC 1426; Solomon v Police HC Wanganui CRI-2010-483-

063, 3 December 2010; White v Police HC Napier CRI-2008-441-000034, 12 December 2008;
S v R supra.

[11]    Perhaps the most helpful case in assessing the term of the sentence of imprisonment  imposed  here  is  the  Court  of Appeal  decision  in  S  v  R,  and  in particular the Court’s decision to uphold the sentence of two months’ home detention in respect of the victim H.   There the District Court Judge had identified a five month  term  of  imprisonment  as  the  starting  point  sentence  for  that  offending, reduced by one month – principally by reason of the fact that it was first time offending.   The offending there was clearly more serious than the offending here: regular slapping on the face of a two year old over a ten month period as opposed to a one-off similar act.  That lesser seriousness can be seen as being reflected in the Judge’s lower starting point, three months’ imprisonment rather than five.  To that extent I cannot conclude that the sentence is manifestly excessive.

[12]     I am not persuaded, however, that an uplift of three months for the previous offending was called for.  At most, a one month uplift would, I think, have been appropriate.   That would have resulted in a four month starting point, reduced to three months on account of Ms Hendry’s guilty plea.  Taking the general approach to a sentence of home detention, this would result in an end sentence of six weeks’ home detention.

[13]     Mr Donnelly  suggested  that  that  difference  was  not  sufficient  for  me  to conclude that the sentence of two months’ home detention imposed by the Judge was manifestly excessive.  I accept that, in terms of the length of time, the difference is a relatively narrow one.  It arises, however, because of what I think was the manifestly excessive uplift.  On that basis, I would be of a mind to allow the appeal and substitute a sentence of six weeks’ home detention for that originally imposed.

[14]     The difficulty I face is that, in the time Ms Hendry has been released from the sentence of home detention imposed on her by the Judge pursuant to s 399(3) of the Crimes Act  1961,  there  has  been  quite  a  change  in  the  obviously  challenging domestic situation of which she is a part.  Her daughter’s partner has recently faced domestic violence charges himself.   This has resulted in Ms Hendry having responsibility for the care of her, now three year old, grandchild on a regular basis. This has involved her – as I understand matters – looking after that grandchild for quite significant blocks of time. There has, obviously, been no repeat of the previous

inappropriate behaviour.  Moreover, and based on the material provided by her new husband to the District Court at the time of her sentencing, it would appear that she is addressing her alcohol problems which clearly contributed to this offending.

[15]     In  these  circumstances,  a  sentence  of  home  detention  would  impose considerable strains on that domestic situation.  As the Courts have emphasised, a sentence of home detention is not a soft option, and is in itself a challenging sentence to serve.

[16]     In these relatively unusual circumstances, I think the appropriate disposition of this appeal is for me 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.

[17]    I recognise that, to some extent, my conclusions in this case have been influenced by the impact that Ms Hendry’s release pursuant to s 399(3) has had. Courts have previously commented that it seemed unlikely that such an automatic release was contemplated by the legislature.5    That a sentence of home detention only arises where an offender might otherwise be sentenced to imprisonment emphasises, I think, the somewhat surprising extension of s 399(3) to sentences of home detention.  That is, however, a matter for the legislature.  The Supreme Court has recently made it clear that the suspension of home detention upon a notice of

appeal is indeed the correct legal position.6

Clifford J

Solicitors:

KWS Legal, P O Box 1207, Invercargill for the appellant ([email protected])

The Crown Solicitor, P O Box 1207, Invercargill for the respondent ([email protected])

5      R v Bisschop [2008] NZCA 229; R v Edwards [2008] NZCA 109; R v Ward [2008] NZCA 328.

6      Vu v Ministry of Fisheries SC 101/2010, 20 October 2010.