M v Police - [2017] NZHC 1427

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000141 [2017] NZHC 1427

IN THE MATTER OF an appeal against sentence

BETWEEN

M Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
19 June 2017;

Further submissions received 23 June 2017

Counsel:

G Timms for the Appellant
G A Campbell for the Respondent

Judgment:

26 June 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 26 June 2017 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Ministry of Justice (Public Defence Service), Auckland
Meredith Connell, Auckland

M v POLICE [2017] NZHC 1427 [26 June 2017]

Introduction

[1] M was sentenced to 13 months’ imprisonment for one charge of assault with intent to injure,1 and one charge of threatening to kill.2 He appeals that sentence on the grounds that the District Court Judge should have imposed a sentence of home detention.

[2] One of the grounds advanced in support of a home detention sentence was that the Judge had failed to take into account the time spent on electronic bail. During the appeal hearing, it became apparent that the Judge had not given credit for that factor in calculating the term of imprisonment. I sought and received further submissions on that issue.

[3] Accordingly the questions raised by this appeal are:

(a) Did the Judge err in failing to commute the sentence to home detention? and

(b) Should there be a discount for time spent on EM bail?

The offending

[4] The convictions arise out of a serious domestic violence event against M’s partner. M and his partner have been in a relationship for approximately 14 years. They have four children together.

[5] On the afternoon of 31 January 2017, an argument started between the couple. M approached his partner from behind and using full force punched her once to the side of the head with a closed fist. He then grabbed her by the hair, pulled her off her feet across the room, causing her to land face first on the dining room table.

[6] He then grabbed the victim by the shoulders and threw her to the ground. She stood up and ran away. But, M caught her and grabbed her again by the hair,

1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 Section 306. Maximum penalty seven years’ imprisonment.

violently throwing her around the room. He then threw her to the floor, causing her to become disorientated, picked her up and pushed her hard into the kitchen bench.

[7] M held the victim against the bench, and punched her three times to the back of the head with full force. He threatened to kill her and again threw her on to the dining room table. Her back…

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 M v Police

Details

AGLC: M v Police [2017] NZHC 1427
Case: [2017] NZHC 1427
Decision Date: 26 June 2017

CaseChat Overview and Summary

M appeals his sentence of 13 months’ imprisonment for one charge of assault with intent to injure and one charge of threatening to kill. He argues that the District Court Judge should have imposed a sentence of home detention. The appeal raises two issues: (a) whether the Judge erred in failing to commute the sentence to home detention and (b) whether there should be a discount for time spent on electronic monitoring (EM) bail. The Court considers the seriousness of the offending, the victim's interests, and M’s prospects for rehabilitation. While M argues that the Judge failed to adequately consider the mitigating factors, the Court finds that the Judge did not err in imposing a sentence of imprisonment instead of home detention. However, the Court holds that the Judge was required to take into account time spent on EM bail and that the failure to do so resulted in a manifestly excessive sentence. Consequently, the sentence is quashed and substituted with a sentence of 12 months’ imprisonment.

The Court's reasoning involves a careful balancing of all relevant factors in light of the principles and purposes of sentencing. The Court takes into account the severity of the offending, the victim's interests, and M's prospects for rehabilitation. The Court also considers the impact of the offending on the victim and their children, as well as the mitigating factors presented. In particular, the Court notes that M has expressed remorse, has a willingness to attend counselling and participate in anger management programmes, and has a commitment from his wider family to support his efforts to reform. However, the Court also emphasises the seriousness of the offending, which involved threats with a knife and attacks to the head, and took place in the sanctity of the home where the victim was entitled to feel safe, and where children were present. The Court concludes that imprisonment was the appropriate sentence, taking into account all relevant circumstances and weighing them in light of the principles and purposes set out in sections 7 and 8 of the Sentencing Act 2002. However, the Court also holds that the Judge was required to take into account time spent on EM bail and that the failure to do so resulted in a manifestly excessive sentence. Accordingly, the sentence is quashed and substituted with a sentence of 12 months’ imprisonment. The protection order made by the Judge remains.

Orders