M v The Queen - [2020] NZHC 3003

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000129

[2020] NZHC 3003

BETWEEN
M

Appellant

AND

THE QUEEN

Respondent

Hearing: 5 November 2020

Appearances:

C Nolan for Appellant

S Bicknell-Young for the Crown

Judgment:

12 November 2020

JUDGMENT OF DOOGUE J

Introduction

[1] The appellant, Mr M, was sentenced by Judge Brian Callaghan on 2 September 2020 to nine months’ supervision on one charge of assaulting a person in a family relationship.1

1 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

M v R [2020] NZHC 3003 [12 November 2020]

[2]The Judge declined to grant Mr M a discharge without conviction.2

[3] The appeal against conviction is advanced on the basis that the Judge made a material error when he referred to an integrated safety report (ISR) when declining the discharge, and that the grounds for a discharge without conviction were made out and such a sentence was the least restrictive outcome and ought to have been granted.

[4]The Crown says the Judge did not err, and the appeal should be dismissed.

The background facts

[5] The victim and Mr M had been married for about 10 years at the time of the offending. On the night of 13 July 2019 they had been out drinking together. They returned home at 2.00 am on 14 July and began to argue. Mr M struck a cigarette out of the victim’s mouth, with a backhand slap. He then struck her for a second time, with the back of his hand to her face. The victim tried to move away to pick up the cigarette, but Mr M grabbed her by the hair and forced her head down onto the bed. The two wrestled around, resulting in the victim striking the wall and exposed beams. The couple’s 16-year-old son was disturbed by the noise. He opened their bedroom door to see Mr M holding the victim up against the wall with his left hand, with his right hand raised as though he were about to strike her. The son called the police.

[6]The victim suffered a swollen lip and sore head as a result of the assault.

District Court decision

[7] The Judge began by considering the gravity of the offending. He noted that the victim suffers from hypercholesterolemia, and that it appeared the argument began because Mr M was concerned about the effect of the victim’s smoking on her health. The Judge appeared to accept counsel for the Crown’s submission that the aggravating factors of the offending were the harm caused to the victim, the fact that the family violence was witnessed by a child, vulnerability of the victim, breach of trust, and the violence occurring in the…

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 The Queen

Details

AGLC: M v The Queen [2020] NZHC 3003
Case: [2020] NZHC 3003
Decision Date: 12 November 2020

CaseChat Overview and Summary

The appeal was heard in the High Court of New Zealand, Christchurch Registry, and involved Mr M, the appellant, appealing against his conviction for assaulting a person in a family relationship. Mr M was sentenced to nine months' supervision and had his application for a discharge without conviction declined by Judge Brian Callaghan. Mr M's appeal was based on the assertion that the Judge made a material error when referring to an integrated safety report (ISR) when declining the discharge, and that the grounds for a discharge without conviction were made out, warranting a less restrictive outcome.

The legal issues before the court were whether the Judge made a material error by referring to the ISR when declining the discharge, and if the consequences of conviction were out of all proportion to the gravity of the offending, warranting a discharge without conviction. The court needed to consider the gravity of the offending, the consequences of conviction, and if those consequences were out of all proportion to the gravity of the offending.

The court found that, despite the ISR being on the record when the matter came before the Judge at sentencing, it was not necessary to reconcile the Judge's remarks as the application needed to be considered afresh. The court held that the offending was moderately serious, considering the harm caused to the victim, the fact that the assault was witnessed by a child, the vulnerability of the victim, the breach of trust, and the violence occurring in the home. The court concluded that the consequences of conviction, such as the potential for job loss, travel impediments, familial opprobrium, and general stigma, were not out of all proportion to the gravity of the offending. Consequently, the appeal was dismissed.

The final orders included the permanent suppression of the victim's name, address, occupation, and any other particulars that may lead to her identification, as well as the permanent suppression of Mr M's name, address, occupation, and any other particulars that may lead to his identification.

Orders