L v Police - [2017] NZHC 1463

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 ROTORUA REGISTRY

CRI-2017-463-26 [2017] NZHC 1463

BETWEEN
L

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 June 2017

Counsel:

G Schweizer for Appellant
S Casey for Respondent

Judgment:

29 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 29 June 2017at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Crown Solicitor, Rotorua

L v NEW ZEALAND POLICE [2017] NZHC 1463 [29 June 2017]

[1] L appeals against her sentence on one charge of assaulting a child, her 13 year old daughter.1 She was sentenced to two months’ home detention plus six months’ post-detention conditions and 160 hours of community work. Judge Hollister-Jones also granted name suppression in the interests of the victim. As such I suppress L’s name throughout this judgment.

[2] L claims the sentence was manifestly excessive.

Background

[3] L had been contacted by the father of her daughter about some behavioural problems he was facing with her. L found her at the local netball courts and punched her to the left side of the head. She then took her home and told her to go outside to the carport area and punched her again in the face, to the left side of the head, and kicked her three times in the buttocks with steel-capped gardening boots. The victim was standing up throughout, so L had to swing her leg three times to connect with her buttocks.

[4] The summary of facts records that the victim received bruising to her left eye, bruising to her hip area and tenderness to her lower back. But the plea of guilty had been entered on the basis that there was soreness to the victim but no bruising, and the medical report describes tenderness in these areas rather than bruising.

The sentence

[5] In fixing sentence, Judge Hollister-Jones noted L had no previous convictions. The Judge set out the frame adopted for his sentence as follows:2

In terms of the purposes and principles of sentencing, I need to hold you accountable, to promote the interests of the victim, to denounce and deter family violence, to sentence you in a consistent way and to have regard to the least restrictive outcome.

[6] The Judge then identified the following aggravating features of the offending:

(a) some premeditation because, as a result of the phone call from the victim’s father, L sought the victim out and then took her home to deal with her;

(b) the use of steel-cap boots; and

(c) a significant breach of trust.

[7] He said there were no mitigating features of the offending, but referred to letters of support which spoke very highly of L, including in particular her contribution over many years to the M Kohanga Reo. He noted the pre-sentence report described L as having limited insight into her…

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 L v Police

Details

AGLC: L v Police [2017] NZHC 1463
Case: [2017] NZHC 1463
Decision Date: 29 June 2017

CaseChat Overview and Summary

L appealed against her sentence for assaulting her 13-year-old daughter, claiming it was manifestly excessive. The sentence involved two months of home detention, six months of post-detention conditions, and 160 hours of community work. The sentencing judge had also granted name suppression for the victim's protection. The legal issues focused on whether the sentence was wrong in principle, particularly in not considering the statutory requirement to impose the least restrictive outcome appropriate and L's rehabilitative needs. The appeal also argued that the sentence was manifestly excessive.

The court found that while the sentence was within the range of options available, the combination of home detention and community work was excessive. The sentencing judge had not explicitly referred to the statutory duty to impose the least restrictive outcome or L's rehabilitative needs but had considered factors like accountability, the interests of the victim, and deterrence. The court concluded that home detention was not excessive in principle but agreed that the community work component was. Therefore, the appeal was allowed only to the extent that the community work component was set aside.

This decision highlights the balance sentencing judges must strike between deterrence, denunciation, and rehabilitation, especially in cases involving child abuse by a first-time offender with a good character. The court underscored the importance of considering rehabilitative needs but found that the overall sentence, despite its combination of penalties, was not manifestly excessive.

Orders