Johnson v Police - [2012] NZHC 2123

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-419-000033 [2012] NZHC 2123

BETWEEN EDDIE JAMES JOHNSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 August 2012

Appearances: J S Gurnick and G Prentice for Appellant
J M O'Sullivan for Respondent

Judgment: 22 August 2012

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 22 August 2012 at 12 noon pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Public Defender Northern, DX CX10005, Hamilton james.gurnick@justice.govt.nz glen.prentice@justice.govt.nz
R G Douch, Crown Solicitor, DX GP20023, Hamilton jmo@almaodouch.co.nz

JOHNSON V NEW ZEALAND POLICE HC HAM CRI 2012-419-000033 [22 August 2012]

Introduction

[1] The appellant has appealed against a sentence of three years nine months imprisonment imposed by Judge Connell in the District Court at Hamilton on 22
May 2012 (“the sentence”).1

Background

[2] The appellant was sentenced after he pleaded guilty to charges laid in respect of offences committed on three occasions. Two of these involved assaults against his partner, in respect of whom a final protection order had been issued in the Rotorua District Court on 12 February 1998, while the third was a charge of driving with excess breath alcohol. The facts relating to the charges are set out below.

November 2011 offending

[3] The appellant pleaded guilty to one charge of assault with intent to injure and one charge of breach of a protection order.

[4] The appellant was getting ready for work in the early hours of the morning of

14 November 2011, and was not able to find his keys. He woke the victim, demanding to know where the keys were. The victim got out of bed to help the appellant find the keys. The appellant kicked the victim in the left side of her ribs. He was wearing his work boots at the time. The appellant also threw a block of cheese at the victim, hitting her right thigh. The victim suffered a “probable” fractured rib, and bruising.

[5] The victim was able to walk away from the appellant, and went out of the house to help look for the keys. The appellant followed. He then located the keys, and locked the door to the house, locking the victim outside. The appellant got into
his vehicle and left for work.

1 Police v Johnson DC Hamilton CRI-2012-019-357, 23 May 2012.

[6] The appellant pleaded guilty to one charge of male assaults female, one charge of breaching a protection order, and one charge of possession of cannabis.

[7] The appellant was at his home address on 17 January 2012. The victim arrived home and a verbal argument developed outside the house. The appellant kicked the victim in the area of her ribs. This caused her to fall backwards and hit a wooden stump on the ground. The victim managed to stand up and walk inside the house. The appellant then grabbed her by her hair and began waving her head back and forth. The victim managed to break…

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 Johnson v Police

Details

AGLC: Johnson v Police [2012] NZHC 2123
Case: [2012] NZHC 2123
Decision Date: 22 August 2012

CaseChat Overview and Summary

Eddie James Johnson appeals against the sentence of three years nine months imprisonment imposed by the District Court at Hamilton on 22 May 2012. The appeal was on the grounds that: (a) the two year starting point for the lead offending (assault with intent to injure) was manifestly excessive; (b) the total uplift applied for the appellant's previous convictions (12 months) was manifestly excessive; and (c) the Judge failed to have sufficient regard for the totality principle when he imposed a cumulative sentence of 13 months imprisonment on the male assaults female charge. The court found that the starting point of two years for the lead charge of assault with intent to injure was not manifestly excessive, nor was the total uplift of six months applied to the starting points for the November 2011 and January 2012 assault charges. However, the court found that the uplifts were manifestly excessive and that a total uplift of six months on the starting points for the charges of assault was appropriate. The court also found that the Judge did not fail to have regard to the totality principle and that a sentence of three years three months imprisonment was appropriate and in proportion to the gravity of the appellant's overall offending. The appellant's appeal against sentence is allowed, in that the sentence of 13 months imprisonment imposed on the charge of male assaults female is quashed, and a sentence of seven months imprisonment imposed in its place. In all other respects, the sentences imposed in the District Court are confirmed.

Orders