Love v Police - [2014] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-92 [2014] NZHC 2643

BETWEEN
MARK RICHARD LOVE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 October 2014

Appearances:

L L Heah for Appellant
AMS Williams for Respondent

Judgment:

28 October 2014

JUDGMENT OF MANDER J

[1] In the early hours of the morning, Mr Love was at home in bed with his wife. She was sleeping. On two occasions throughout the night she had declined his requests for sex. It is apparent this was a source of irritation to Mr Love and, when his wife’s phone rang, he became enraged and attacked her. Mr Love pushed himself on top of his victim, pinned her down with his knees, and punched her in the face. His victim was able to fend him off and call the police.

[2] Upon arrival, the police found items consistent with methamphetamine use and a small amount of cannabis. As a result of the assault, the victim suffered swelling and bruising in the region of her eye.

[3] Mr Love was subsequently charged and bailed. A condition of his bail was that he not contact his wife or go within 100 metres of her address. Following this incident, the victim obtained a protection order. On two occasions, Mr Love
breached the protection order and conditions of his bail.

LOVE v NEW ZEALAND POLICE [2014] NZHC 2643 [28 October 2014]

[4] On the first occasion, Mr Love went to his wife’s home uninvited, entered the house when she answered the front door, sat down on a couch and used her laptop. She asked him to leave, which he eventually did. On the second occasion, Mr Love sent the victim some 34 text messages and called her on her cell phone on four occasions. In explanation, Mr Love claimed that his wife had initiated contact by text message and she had invited him around to the address. He has subsequently admitted this was not the case.

[5] Mr Love pleaded guilty to a charge of male assaults female, possession of a class C drug, possession of utensils, and breaching protection orders on two separate occasions. Judge Crosbie sentenced him to a total sentence of 12 months imprisonment. The sentencing Judge adopted a starting point of nine months imprisonment for the charge of male assaults female which he uplifted by imposing a cumulative term of three months imprisonment for the two breaches of the protection order, before increasing the sentence further by three months to recognise that the breaches of the protection order had occurred while Mr Love was on bail. The end sentence of 15 months was then discounted by three months in recognition of Mr Love’s guilty pleas. Judge Crosbie declined to impose a sentence of home detention. In relation to the two minor drug offences, the appellant was convicted and discharged.

[6] On appeal, Mr Love submitted that a sentence of imprisonment was inappropriate, that the 12 month term imposed was manifestly excessive and that home…

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 Love v Police

Details

AGLC: Love v Police [2014] NZHC 2643
Case: [2014] NZHC 2643
Decision Date: 28 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mark Richard Love appealed against his conviction and sentence for male assaults female, possession of a class C drug, possession of utensils, and breaching protection orders on two separate occasions. The sentencing Judge imposed a total sentence of 12 months imprisonment, which was reduced to nine months by discounting three months for Mr Love's guilty pleas. The Judge declined to impose a sentence of home detention. On appeal, Mr Love submitted that a sentence of imprisonment was inappropriate, that the 12 month term imposed was manifestly excessive and that home detention should have been imposed. The court found that the starting point of nine months imprisonment was appropriate, however, the length of sentence was excessive. The court found that the reduction of three months to recognise Mr Love's guilty plea was a proper reduction available to the sentencing Judge. The court found that Judge Crosbie did not err in the exercise of his discretion to decline home detention to Mr Love. In substitution of the sentence of 12 months imprisonment, the court imposed an effective sentence of seven months imprisonment.

Orders