K v R HC Palmerston North CRI 2008-454-51

[2008] NZHC 1804

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-51

K

v

THE QUEEN

Hearing:         19 November 2008

Counsel:         P S Coles for Accused

A Hall for Crown

Judgment:      20 November 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr K   says a sentence of supervision and especially one which had a special condition that he live at an address approved by the Probation Officer was either wrong in principle or manifestly excessive with regard to his conviction for male assaults female in the District Court.

[2]      As far as the facts were concerned Mr K   and his wife were living in Feilding.  Mrs K   apparently found a text message on his phone from a woman in the Philippines.  She called the woman and noted her phone number on a piece of paper.  The appellant found the paper and put it in his pocket.  He went to his vehicle at the driveway of the address.  That paper fell out of his pocket and was picked up in turn again by the victim.  Mr K   got out of the car, demanded the paper back

and when the victim walked to the front of the vehicle he grabbed her and the

K V R HC PMN CRI 2008-454-51  20 November 2008

Summary of Facts record forced her onto the bonnet of the vehicle.  It seems that the forcing involved lifting her and putting her on the vehicle.

[3]      The victim struggled to get away and during the course of that bit him in an attempt to get him to release her.  She freed herself and ran back to the house.  He chased her and grabbed her as she tried to climb a small gate.  He pushed her in the chest and during that altercation the victim’s glasses fell from her face and were smashed on the ground.  She fled from the house and in turn Police were called and at the same time the appellant went to Feilding Police Station where he said he may have assaulted someone.

[4]      I note the Summary of Facts originally said the appellant had punched rather than pushed the victim in the chest but as I understand it the Judge in the District Court and certainly I have proceeded on the basis that it was a push.

[5]      The appellant submits that a conviction and discharge was the appropriate sentence here because:

a)        he had no previous history of violence in his marriage;

b)at the time of the assault he was in receipt of Accident Compensation and had been suffering from depression and had chronic pain;

c)        thirdly, the victim did not want the prosecution to continue in any event; and

d)       that he is at low risk of re-offending.

[6]      The Probation Officer who completed the Report thought, as did the Judge that supervision and particular assistance to the appellant was required.  I agree.  The appellant has had previous convictions for domestic violence, three assault convictions on the same day in 1992.  The sentence then imposed was very modest and the incident was, of course, many years ago but they do illustrate that Mr K   can resort to violence when his domestic circumstances are perhaps stressful.

[7]      While the assessment tools used showed a low risk of re-offending obviously assistance   with   programmes   relating   to   domestic   violence   and   relationship counselling were suggested by the circumstances.   The Probation Officer was obviously not  convinced  about  the  low  risk  of  re-offending  without  help  being provided to Mr K  .   I agree with that assessment.   In my view, a sentence of supervision was clearly an appropriate sentence and justified in the circumstances. A conviction and discharged would not have been appropriate based on the facts of this case or given the previous convictions.   This was not just a push this was persistent  aggressive  behaviour  by the  appellant.    Given  his  past  this  was  well beyond a simple conviction and discharged.

[8]      As to the condition relating to residence its imposition had a logical basis.  It allowed the appellant and his wife to live together as they wanted but it allowed the Probation Officer to require Mr K   to leave if serious problems arose especially through the violence.  That was designed, of course, to protect the complainant and most importantly to try and anticipate any further offending by Mr K   and remove him from the position.

[9]      Counsel suggested that obtaining a protection order by Mrs K   would do just as well might be true but it cannot be said that a protection order is somehow an alternative  to  such  a  condition.    The  condition,  in  my view,  was  properly  and logically imposed.   If Mr and Mrs K   continue to be happily married without incident then of course that condition will never be used but it is in the circumstances a logical and sensible back stop for both parties.

[10]     The appeal will be dismissed.

Ronald Young J

Solicitors:

P S Coles, Principal, Palmerston North, email: [email protected]

A Hall, Ben Vanderkolk & Associates, PO Box 31, Palmerston North, email:  [email protected]