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 what was his sixth excess breath alcohol charge.

[6]      The appeal from the sentences on these convictions is brought on the basis that the sentence of two years and three months’ imprisonment is excessive.  Earlier on the day of sentencing, the Judge had provided a sentencing indication and it is therefore  understandable  that  the  notes  of  the  sentencing  are  somewhat  more

truncated than they might have been, given that numerous of the considerations had been addressed earlier in the day.

[7]      In considering an appellant’s claim that a sentence is manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.[1]    However, in a situation such as the present, it is inevitable that  argument  on  the  appeal  will  involve deconstructing the  components  of the sentence for the purposes of attempting to align it with appropriate analogies, and to measure the justification or otherwise for the end sentence resulting from the components of it.

[1] For example, Ripia v R [2011] NZCA 101 at [15].

[8]      That process is complicated somewhat by the sentencing Judge’s decision to impose concurrent sentences for offending of different types, namely the preponderance of the offending which was domestic violence, and the distinct offending involving driving with excess breath alcohol.  The connection between the two forms of offending is the timing sequence, but there is otherwise no cross over. There is no record of the sentencing Judge’s view on the contribution the excess breath alcohol conviction made to the totality of the overall offending when it was to be dealt with by a concurrent sentence.  Accordingly, counsel were left to speculate on the appropriate contribution the concurrent sentence for the excess breath alcohol conviction ought to have made, in application of the totality principle, to the lead sentence imposed on the conviction for injuring with intent to injure.

[9]      The Judge indicated that, in light of the extent of previous excess breath alcohol convictions, the current one would attract a starting point in the region of

14 months’ imprisonment.  Presumably he discounted that to reflect an early guilty plea on that charge in the end sentence of 12 months, to be served concurrently.  No separate  challenge  to  that  component  of  the  sentencing  is  raised  on  behalf  of Mr Horscroft.  I need to revert to the appropriate contribution it might make to the lead sentence, to reflect the totality principle.

[10]     As to the considerations relevant to the starting point for the conviction for injuring with intent to injure, the Judge acknowledged the application of band two

from the Court of Appeal decision in R v Harris.[2]     There, the Court of Appeal provided:[3]

Band two: where the injuries are moderate, sentences of up to two

years’ imprisonment can be justified;

[2] R v Harris [2008] NZCA 528.

[3] At [10].

[11]     Mr Hannam’s principal argument was that, treating the conviction as falling within that band, the extent of injuries suffered by the present victim are materially less than in other sentencing appeals where the Court of Appeal has adopted lower sentencing levels.  In particular, he referred to the appeal in Luff-Pycroft v R, where the victim suffered bruises to the face and fractured tooth enamel after three separate incidents of domestic violence.[4]   The attacks in that case included two attempts to strangle the victim, two threats to kill her (and the offender himself) whilst brandishing a knife, plus several biting and kicking injuries to the victim’s face and

body.     The   sentencing  Judge   had   adopted   a  starting  point   of   two   years’ imprisonment, uplifted by four months to reflect that there were two charges of assault with intent to injure and the continuing nature of the violence.   Numerous mitigating factors applied to provide an end sentence of 10 months’ imprisonment.

[4] Luff-Pycroft v R [2012] NZCA 107.

[12]     Those levels were not under challenge in the appeal to the Court of Appeal. Rather, argument focused on the Judge’s refusal to substitute home detention.  I am not helped by the Court of Appeal’s analysis on that issue, in assessing the appropriateness of the length of sentence decided upon here.  The fact that the Court of Appeal did not comment adversely on the starting points adopted in Luff-Pycroft, which arguably involved more serious injuries to the victim than in the present case, cannot help in resolving the appropriateness of the present starting point when that was not an issue before the Court of Appeal.

[13]     Mr Hannam also cited the decision in Ross v R, in which the Court of Appeal suggested that a starting point at the top of band two of Harris would indicate the most severe injuries that could be categorised as moderate.[5]   The victim in that case

had suffered relatively similar injuries to those incurred here, with bruising and

grazing to the head and eyes, and an open wound at the base of his ear.  That level of injuries was treated as insufficient by the Court of Appeal to attract a two year starting point without other aggravating features.[6]    On that approach, Mr Hannam submitted that the victim’s injuries in the present case could not reasonably be treated as the most severe coming within the moderate category.

[5] Ross v R [2010] NZCA 306.

[6] At [17].

[14]     Mr Hannam also cited the Court of Appeal’s consideration in Eden v R.[7]

There, the victim was punched and kicked a number of times before being knocked unconscious to the ground.   The offender jumped on the victim’s head, causing bleeding and severe headaches.  The Court of Appeal upheld a starting point of two years and six months’ imprisonment, which reflected the significant potential for harm by stomping on the victim’s head, even although the actual injuries sustained fell within band two for which a two year starting point would generally be the upper limit.  An uplift was warranted because of the potential for even greater harm than actually occurred, given the mode of the attack and its continuation whilst the victim was defenceless on the ground.  Measured in terms of the seriousness of the injuries and the implications of them, the injuries there are inarguably more serious than in the present case.

[7] Eden v R [2011] NZCA 54.

[15]     However, as discussed with Mr Hannam in the course of argument, I am reluctant to adopt the gradations of seriousness in injuries caused as determinative in resolving where, within band two from Harris, the starting point for the offending should be.  There will be cases in which aggravating features of the offending and the circumstances in which it occurred are appropriately reflected in the starting point chosen within the band.  Accordingly, accepting Mr Hannam’s point that, in relative terms, the injuries inflicted on this victim are not as serious as those in the other cases he cited as comparators, does not mean that the Judge’s starting point is necessarily excessive.

[16]     The most important aggravating factor here is that the most serious offending occurred  in  the presence of  young children.   The trauma that  causes  for them,

without any physical violence inflicted on them, should not be under-estimated,

given the fear and insecurity of their own position and, longer term, the prospects for desensitising them to violence in the home.

[17]     Next, there was a history of violence in this relationship.  Mr Horscroft had previously been convicted of assaulting the victim, and their separation had been recognised in a protection order against him.

[18]     The Judge identified the attack to the victim’s head and the fact that she was a vulnerable victim as aggravating factors, and I agree with that.

[19]     Overall, although it reflects a stern approach to sentencing to treat this at the uppermost starting point within band two, I am not prepared to treat it as excessive, given the cumulative effect of these aggravating factors involved in the offending.

[20]     Having fixed on that starting point for the lead offending, care is required not to double-count the context in which its seriousness is measured, when reflecting on the criminality involved in the convictions for the other violent offending.  That step is necessary to assess whether an uplift for that other offending is appropriate.  Here, there was a threat to kill, reasonably taken seriously by the victim, and the earlier assault   on   her,   which   was   moderately   serious   and   similarly   occurred   in circumstances where she was vulnerable.  An additional five months could not be criticised on that account.

[21]     If the excess breath alcohol conviction is to be subsumed within the longest of a series of concurrent sentences, then the totality principle requires a reduction from the stand-alone sentence it would otherwise attract.   Having regard to the components of Mr Horscroft’s criminal record that are for driving offences, and in particular that this is his sixth[8] conviction for excess breath or blood alcohol, I would be minded to reflect the criminality of this component of the offending over the relevant few days by an addition of six months.

[8] The convictions included one when Mr Horscroft was under 20 years of age, so that a lower limit applied. The sentencing Judge expressly discounted that conviction, as have I.

[22]     Reconstructing the sentences in that way provides a total starting point of

35 months.  Assuming that the circumstances of the guilty pleas were sufficiently

early to justify the maximum discount of 25 per cent,[9]  and in the absence of other mitigating factors, would produce an end sentence of between two years two months and two years three months’ imprisonment.   To alter the outcome ordered by the sentencing Judge would be to tinker and I am not prepared to do so.

[9] Hessell v R [2010] NZSC 135.

[23]     Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

J C Hannam, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent