I v Police - [2013] NZHC 2925

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000273 [2013] NZHC 2925

BETWEEN NI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 November 2013

Appearances: J Harder and Ms Kemp for Appellant
E Rutherford for Respondent

Judgment: 6 November 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 November 2013 at 3.00 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Public Defence Service, Auckland
Crown Solicitor, Auckland

NI v NZ POLICE [2013] NZHC 2925 [6 November 2013]

Introduction

[1] Mr I pleaded guilty in the District Court at Auckland to one charge of assault on a child. On 6 September 2013 Judge G A Fraser declined his application for discharge without conviction, convicted him and imposed a sentence of 100 hours community work and nine months supervision.1 Mr I appeals against both the decision to convict him and also against the sentence.

Background

[2] On 28 November last year Mr I and his daughter Z, were at his mother’s

address. Z was aged four at the time.

[3] Mr I came out of the bedroom and told Z, who was sitting at the dining table, that it was time to go home. Z began to cry. This enraged Mr I. He leant over the table and slapped Z across her right cheek with the back of his right hand. The backhand was forceful enough to knock Z off her seat and cause her to fall to the ground. Z got up and stood behind her aunt, who was also present. The appellant approached Z and slapped her again to the back of her left shoulder using his open right palm. The aunt then took Z to the car.

The District Court judgment

[4] In declining the application for discharge without conviction Judge Fraser was of the view this was a serious assault, not low-end domestic violence. The Judge noted there was a significant breach of trust and a fundamental breach of the parental relationship. He also noted there were two strikes, one he saw as particularly serious. He said the offending was stopped by others.

[5] The Judge was not satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending. He
declined the application for discharge without conviction.

1 NZ Police v NI DC Auckland CRI-2012-004-019040, 6 September 2013.

[6] The Judge then imposed sentence as follows:

[12] Giving you credit for lack of previous of a similar nature and your guilty plea at a relatively early time, you are convicted and sentenced to 100 hours’ community work. You will do nine months’ supervision. You will attend courses, counselling, and/or programmes for any identified need as directed by the…

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 I v Police

Details

AGLC: I v Police [2013] NZHC 2925
Case: [2013] NZHC 2925
Decision Date: 6 November 2013

CaseChat Overview and Summary

The appeal was brought by Mr I, who was convicted in the District Court of assaulting his four-year-old daughter. The appeal was against both the decision to convict and the sentence imposed. The appellant argued that the assault was not as serious as the District Court had found and that the consequences of conviction were disproportionate to the gravity of the offence. The appellant also submitted that the sentence was manifestly unjust.

The court had to decide whether the District Court was correct in categorising the assault as serious and whether the consequences of conviction were out of all proportion to the gravity of the offence. The court also had to consider whether the sentence imposed was appropriate.

The court found that the assault could be properly regarded as moderately serious but noted that there were no long-term injuries and positive mitigating factors. The court held that the consequences of conviction were not out of all proportion to the gravity of the offence. However, the court found that the sentence imposed was not sustainable. The court replaced the original sentence with a sentence of 60 hours community work.

The appeal against conviction was dismissed, but the appeal against sentence was allowed. The sentence of 100 hours community work and nine months supervision was quashed and replaced with a sentence of 60 hours community work.

Orders