Higgins v Police

[2012] NZHC 2097

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-43 [2012] NZHC 2097

BETWEEN  JUSTIN LESLEE HIGGINS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 August 2012

Counsel:         DH Hall for Appellant

N Tahana for Crown

Judgment:      16 August 2012

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Davys Burton, P O Box 248, Rotorua 3040 (Email:  [email protected] ) Gordon Pilditch, P O Box 740, Rotorua 3040. (Email:  [email protected] )

JUSTIN LESLEE HIGGINS V NEW ZEALAND POLICE HC ROT CRI-2012-463-43 [16 August 2012]

Introduction

[1]      Mr Higgins pleaded guilty in the Rotorua District Court to charges of male assaults female, cultivation of cannabis and unlawful possession of a firearm.   He was sentenced to 17 months imprisonment by Judge Munro.  He appeals against his sentence as being manifestly excessive.

Facts

[2]      The assault occurred on 11 May 2012.  The victim was Mr Higgins’ partner with whom he had had an on-and-off relationship for the previous four years.  They had  three children  together.   At  11.00  p.m.  he arrived home with  an  associate, moderately intoxicated.  After a meal, which he demanded that his partner prepare, she went to bed.  He continued drinking.  She asked him to stop drinking and come to bed.  He became angry and swore and yelled at her.  She responded in kind.  This enraged him.  He approached her while she was lying on the mattress on the floor and, according to the summary of facts, kicked her using a stomp-type kick towards her head about five times.  She covered her head with her arms and only one stomp connected with the back of her head.   Mr Higgins walked away but continued to abuse the victim and called her offensive names.  He did not react but he returned a few minutes later again stomping her head area about five times and punching her in the head about three times.  This is said to have continued for about five times.  The attacks ceased when a neighbour’s car was heard to arrive.  The victim was able to run to the bathroom and call the police.

[3]      Her injuries were minor.  In her victim impact report she describes them as tenderness  to  the  back  of  the  head  and  neck  area.    Medical  attention  was  not required.

[4]      The  cannabis  and  firearms  charges  arose  out  of  a  police  search  of

Mr Higgins’ home address the previous month, on 5 April 2012.  The police found

17 cannabis head packages wrapped in tinfoil.  In a bedroom they found an indoor cannabis growing setup .   The windows had been darkened and a high-powered

lighting system installed.  There were the remains of five cannabis plants that had already been harvested.

[5]      In the backyard the police found ten cannabis plants of varying sizes growing and some cannabis seeds in a plastic bag were also found.   In the course of the search, the police also found a shotgun under a bed and shotgun cartridges in a vehicle parked in the front yard.

[6]      Mr Higgins admitted that the cannabis was his.   He said he had already harvested about two ounces.  He explained that he had found the shotgun by the river and was going to fix it up for use for hunting.

Judge’s decision

[7]      In her sentencing remarks, the Judge noted that the appellant (who is aged

24) did not have any previous convictions for domestic violence, drug offending or firearms.   She noted, however, that Mr Higgins had displayed no remorse and appeared to have no insight into his offending, including the contribution made by alcohol.   She considered and rejected the option of home detention that had been favoured in the pre-sentence report.  She made reference to the fact that this would involve returning him to the place in which the offending had occurred.  In addition, she said in the absence of remorse, a sentence of home detention simply would not have responded to the offending.

[8]      She adopted a starting point of 15 months imprisonment for the male assaults female charge, reduced to 11 months to take into account Mr Higgins’ guilty plea. On the cultivation of cannabis charge, she adopted a starting point of eight months imprisonment, reduced to six months to take account of the guilty plea.  She made these sentences cumulative, leading to a total sentence of 17 months imprisonment. She sentenced Mr Higgins to one month’s imprisonment for the firearms charge to be served concurrently.

Defence submissions

[9]      Mr Hall submits that the final sentence was manifestly excessive.  This arises largely, on his argument, because of excessively high starting points adopted for the two main charges.   Mr Hall points out that the use of the rather loaded term “stomping”  might  have  given  an  exaggerated  impression  of  the  severity of  the violence. As the injuries were only of a minor and transitory nature, he contends that this could not have been a case of repeated stomping in the sense that term is usually used.

[10]     Mr Hall referred to R v Reihana,[1] in which a number of sentencing decisions in cases of male assaults female were reviewed, in support of his submission that the starting  point  adopted  by  the  Judge  was  well  outside  the  available  range.    He suggests that the Judge may have been adversely influenced against Mr Higgins by some unfortunate comments he made to the probation officer indicating a somewhat cynical attitude to programmes which might address his underlying problems.

[1] R v Reihana CA143/03, 3 July 2003.

[11]     In relation to the cannabis offending, Mr Hall submits an end sentence of six months was manifestly excessive given that Mr Higgins had no previous drug convictions.  He said that, had Mr Higgins been sentenced for that offending alone, he could have reasonably expected a sentence of community work and perhaps supervision.

[12]     Mr Hall’s position is that having regard to the offending overall, applying the totality principle, an end sentence of between six and eight months would have been appropriate.

Crown submissions

[13]     In  seeking  to  defend  the  Judge’s  decision,  Ms  Tahana  reminds  me  that

although the injuries may not have been serious, this was a prolonged assault which

only came to an end with the fortuitous arrival of the neighbour’s vehicle.   She

referred me to two sentencing decisions of this Court – Te Tau v Police[2] and Kahaki v Police[3] which she said provided support for the Judge’s starting point on the male assaults female charge.

[2] Te Tau v Police HC Dunedin CRI-2012-412-7, 17 May 2012.

[3] Kahaki v Police HC Tauranga CRI-2009-463-33, 16 June 2009.

[14]     Ms Tahana acknowledged that a community-based sentence would have been likely had Mr Higgins been sentenced for the cannabis offending alone but submitted that the starting point adopted by the Judge was justifiable, having regard to indications of commerciality in the offending.   This came in the form of the foil- wrapped packages of cannabis.  She acknowledged, however, that this would have to be seen as the lowest level of commerciality, in the absence of any of the familiar indicia of dealing in cannabis.

Discussion

[15]     In Reihana the Court of Appeal noted[4] that there is no tariff for the offence of male assaults female.   The circumstances of its commission and of offenders can vary greatly.   The Court was considering a sentence in which a sentence of ten months imprisonment had been imposed.   The appellant had visited the victim’s house and in angry circumstances, punched the victim in the eye causing her to fall to the floor.  She sustained a split eyebrow and a completely blackened eye.  She was hospitalised.   Her eyesight was temporarily affected.   There were no factors warranting an adjustment to a starting point of ten months imprisonment.

[4] Reihana at [43].

[16]     The Court of Appeal observed that this was a serious offence.  The appellant had been told not to enter the complainant’s home but persisted in doing so.  The appellant had punched the complainant unexpectedly and in anger.   In the circumstances,  however,  the  Court  was  satisfied  that  the  sentence  imposed  was clearly excessive.  It was reduced to five months.

[17]     One of the sentences referred to by the Court in Reihana, R v Nixon,[5]  is instructive.  In that case an argument developed between the appellant and his wife.

He grabbed her, pushed her out of the door causing her to fall onto a concrete area outside.  He then approached her and kicked her three times in the back across the tailbone.  She received bruising to the back and her thing and right hip area.  She required treatment and needed crutches for six days.   A sentence of 12 months imprisonment, which took into account previous extensive violence convictions, was described as firm but not manifestly excessive.

[5] R v Nixon CA87/01, 19 June 2001.

[18]     The two cases referred to me by Ms Tahana – Te Tau and Kahaki – do not bear direct comparison with the present case because the assault in both cases involved breach of a protection order arising out of previous acts of violence against the victim.

[19]     In Te Tau the assault involved pushing the victim several times, grabbing her neck and holding her arm, causing her to fall backwards when she pulled free.  Her injuries were confined to a small cut to her right elbow.  The sentencing Judge took a starting point of one year imprisonment for the breach of protection order and added nine months to reflect the assault charges.  On appeal, MacKenzie J found that to be

outside the available range.  He said[6] that an appropriate starting point for the totality

of the offending should not have exceeded the one year adopted for the assault.

[6] Te Tau at [14].

[20]     Kahaki, which is one of the cases referred to in Te Tau, involved a much more serious assault.  The offender subjected his partner to a sustained beating, shoving and pushing her, pulling her hair and punching her to the face and head.  She was knocked to the ground then stomped on by the offender with his bare foot before being punched at least a further ten times to the face and head.   She received fractured ribs and serious bruising to the head and lower back.  The sentencing Judge adopted a starting point of 15 months, uplifted by nine months to take account of the previous conviction for serious violent offending.

[21]     On appeal, Lang J held that the starting point adopted by the Judge was too high.     He  preferred  what  he  described[7]    as  a  starting  point  of  20  months

imprisonment.  However, it is clear that his starting point was reached after an uplift

of five months imprisonment for the previous offending.  The effective starting point for both the assault and breach of the protection order was 15 months.

[7] Kahaki at [12].

[22]     Having regard to these decisions, in particular the decision of Reihana, I am satisfied that the starting point adopted by the sentencing Judge in this case was well outside the available range.   While the assault by Mr Higgins was prolonged and cowardly, it did not involve aggravating features sufficient to support the starting point adopted by the Judge.   I think Mr Hall is right to submit that the use of the word  “stomping”  (apparently  adopting  the  terminology  of  the  victim  in  her statement) was potentially misleading.  It seems clear that the foot was employed in the course of the attack.  How that happened is a matter of speculation.  In the end, the injuries sustained by the victim provide the only reliable measure of the way it was used.   Doing the best I can with the available information, I consider that a starting point of eight months imprisonment would have sufficiently recognised the seriousness of the assault.

[23]     The Judge was plainly right to add a short prison sentence to cover the cannabis offending, notwithstanding the fact that had Mr Higgins been sentenced for that offending alone, he could have expected a community-based sentence.  I accept, however, the submission that the starting point of eight months was too high, having regard to the low level of offending.  I do not overlook that there was some element of commerciality arguably present but it was at the very lowest level and could not, in my view, be regarded as a significant aggravating feature.   I consider that a starting point of four months adequately reflects the seriousness of that offending.

[24]     That produces a total starting point of 12 months which must be reduced to take account of Mr Higgins’ guilty pleas.  There is no reason to depart from the 25 per cent deduction used by the Judge for this purpose.   A final sentence of nine months imprisonment results, with the firearms sentence of a concurrent sentence of one month remaining.

Result

[25]     The appeal is accordingly allowed.  The sentence of 17 months imprisonment is quashed.  The sentences imposed on the male assaults female and cultivation of cannabis charges are quashed.   In their place I impose a sentence of six months imprisonment on the charge of male assaults female and three months on the charge of cultivation of cannabis. Those sentences are to be cumulative.

[26]     The  concurrent  sentence  of  one  month  imprisonment  on  the  charge  of unlawful possession of a firearm stands.