Jenner v Police - [2020] NZHC 62

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-42

[2020] NZHC 62

BETWEEN
ROBERT JOHN JENNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 February 2020

Counsel:

L R H Grant for Appellant L M Marshall for Crown

Judgment:

3 February 2020

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 29 November 2019, Mr Jenner was sentenced by Judge Sygrove in the Napier District Court to three years’ imprisonment on the charge of strangulation,1 and 18 months’ imprisonment on the charge of assault with intent to injure and breach of a protection order.2

[2] Mr Jenner appeals the sentence on the grounds that the Judge erred in adopting too high a starting point for the sentence, imposed a disproportionate uplift for the appellant’s previous conviction history, and that he did not grant a discount for time spent on electronically monitored bail.

1 Crimes Act 1961, s 189A(b).
2 Crimes Act 1961, ss 193; Domestic Violence Act 1995, ss 19(1)(a), 49(1)(b) and 49(3).

JENNER v NEW ZEALAND POLICE [2020] NZHC 62 [3 February 2020]

[3] The Police oppose the appeal. They submit that the end sentence of three years’ imprisonment in this case cannot be considered manifestly excessive, and that the Judge did not err in imposing that sentence.

Factual background

[4] On 18 February 2019, the appellant and complainant were residing at their home address in Napier. They have been in a relationship for the past eight or nine years, and the appellant has committed previous domestic violence offences against the complainant, although Ms Grant, for the appellant, draws my attention to the fact that the prior offences are of a lesser nature than the offences involved in this case.

[5] In the morning of the 18th, an argument between the two had occurred concerning the appellant borrowing the complainant’s car to go and buy cigarettes. The argument continued for a period of time, and then the complainant went into the bedroom to gather clothes and other personal belongings in order to leave the house. The appellant followed the complainant into the bedroom and began to assault her.

[6] The appellant firstly grabbed the complainant by the legs, pulling them out from under her, causing her to fall on the floor on her back. The appellant then grabbed the complainant’s legs again and slammed her onto the floor on the back of her neck. He then ‘spear-tackled’ her to the ground, causing her to land on the ground on her neck again.

[7] The appellant started to stomp on the complainant’s ribs and chest as she lay on her back on the floor. The complainant yelled at the appellant to stop. The appellant yelled back “I don’t fucken care, I just want to smash your fucken face in”. The complainant described the stomping as “full force” and “10/10” in terms of strength. While the appellant was stomping on the complainant, he was also punching her head and body multiple…

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 Jenner v Police

Details

AGLC: Jenner v Police [2020] NZHC 62
Case: [2020] NZHC 62
Decision Date: 3 February 2020

CaseChat Overview and Summary

Robert John Jenner appeals his sentence for strangulation, assault with intent to injure, and breach of a protection order. The appeal is brought under section 250 of the Criminal Procedure Act 2011, which requires the Court to be satisfied that there was an error in the sentence imposed and a different sentence should have been imposed. Jenner argues that the District Court Judge erred in adopting too high a starting point for the sentence, imposing a disproportionate uplift for his previous conviction history, and that he did not grant a discount for time spent on electronically monitored bail. The Police oppose the appeal, arguing that the end sentence of three years’ imprisonment cannot be considered manifestly excessive and that the Judge did not err in imposing that sentence.

The Court found that the Judge erred in two respects. Firstly, the Judge had effectively 'double-counted' the offences additional to the strangulation, namely assault with intent to injure and breach of protection order. Secondly, the Judge failed to take into account the appellant’s time spent on electronically monitored bail when considering the sentence of imprisonment. The Court concluded that the sentence of 18 months’ imprisonment on the charges of assault with intent to injure and breach of the protection order should have been concurrent rather than cumulative. Having altered the sentence in this way, the Court decided not to adjust the three-year sentence on the strangulation charge given that, overall, this reflected the totality of the criminality involved. Accordingly, the appeal is allowed on the basis that the two sentences are to run concurrently rather than cumulatively, other than in that respect, the appeal is dismissed.

Orders