Horscroft v Police - [2012] NZHC 1997

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-043-001253 [2012] NZHC 1997

BETWEEN BRANDON MAXWELL HORSCROFT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 August 2012

Counsel: J C Hannam for appellant
S A Law for respondent

Judgment: 9 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] On 7 June 2012, the appellant (Mr Horscroft) was sentenced to two years and three months’ imprisonment in the District Court at New Plymouth. That was the sentence imposed for the most serious of a range of convictions, being for injuring with intent to injure. Judge A C Roberts also imposed concurrent sentences for the
following convictions:

nine months’ imprisonment for male assaults female;

sixmonths’ imprisonment on two convictions for contravening a protection order;

nine months’ imprisonment for threatening to kill; and

12 months’ imprisonment for excess breath alcohol, being a third or

subsequent conviction.

HORSCROFT v NEW ZEALAND POLICE HC NWP CRI 2012-043-001253 [9 August 2012]

[2] The convictions arose out of a series of domestic incidents. In September

2011, Mr Horscroft had been the subject of a protection order granted in favour of the victim in the series of incidents, who was his domestic partner and the mother of the couple’s three children. However, by May 2012 Mr Horscroft had moved back into the family home.

[3] On 7 May 2012, Mr Horscroft punched the victim in the head with a closed fist. He then climbed on top of her, attempting to move her hands away from her head and face where she held them to protect herself, and elbowed the victim in her throat, causing her to gasp for air. Thereafter, on that occasion he left her alone.

[4] In the middle of the night on 11 May 2012, Mr Horscroft returned to the family home in a state of intoxication. He woke the victim, who moved out of her bedroom to avoid an argument with him, but Mr Horscroft followed her into the lounge. After a short argument, he punched her to the head about five times. He then followed her from the lounge to the kitchen, punching her to the head a couple more times and in the stomach. This assault woke the couple’s children and Mr Horscroft dragged the victim into the children’s bedroom, supposedly to reassure them that all was well. From there, he dragged her back into the lounge where he continued to punch her about the head a number of times. He put his hands around the victim’s throat and started to strangle her. The assault continued in the presence of their six year old child, and the victim then moved with all three children, barricading themselves in a bedroom to prevent the assault continuing.

[5] During the assault, Mr Horscroft threatened to kill the victim, which she took seriously. After the victim had barricaded herself and the children in a separate room, Mr Horscroft left the house. On the same evening, Mr Horscroft was apprehended driving, resulting in a charge for…

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.

Keep reading for free

Create a free CaseChat account to read Horscroft v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 1997
Decision Date: 9 August 2012

CaseChat Overview and Summary

Brandon Maxwell Horscroft, the appellant, sought to appeal his conviction and sentence for injuring with intent to injure and other related offences. These offences stemmed from a series of domestic incidents involving his former domestic partner, who was the mother of their three children. The New Zealand Police, as the respondent, defended the sentence imposed by the District Court. The primary legal issue before the High Court was whether the two years and three months' imprisonment sentence for the most serious conviction was excessive. The Court had to consider the totality of the offending, the seriousness of the injuries inflicted, and the impact on the victims and their children.

The Court reviewed the circumstances of the assault, noting that it occurred in the presence of the couple's children, which significantly aggravated the offending. It also considered the history of domestic violence and the victim's vulnerability. The Court held that while the injuries were not as severe as in some other cases, the cumulative effect of the aggravating factors justified the starting point chosen by the sentencing Judge. The Court also addressed the sentencing of concurrent sentences for different types of offending, considering the principle of totality and the criminality of the excess breath alcohol conviction. Ultimately, the Court found that the sentence was appropriate and dismissed the appeal.

The Court upheld the original sentence imposed by the District Court, concluding that the sentence was not excessive given the totality of the offending and the circumstances surrounding the incidents. The Court emphasised the importance of considering the impact of the offending on the victims and their children, as well as the history of domestic violence in the relationship.

Orders