Mabry v Police HC Napier CRI-2011-441-34 - [2011] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-34

BETWEEN BRUCE MABRY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 25 October 2011

Counsel: M J Phelps for Appellant
J D Lucas for Respondent

Judgment: 27 October 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 October 2011 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL
AJS Phelps (Hastings) for Appellant
Elvidge & Partners (Napier) for Respondent

MABRY V POLICE HC NAP CRI-2011-441-34 27 October 2011

Introduction

[1] On 5 August 2011, District Court Judge AJ Adeane at Napier sentenced the appellant to a total of 28 months’ imprisonment on a range of offences. The offences fell into three separate categories and therefore the Judge had to impose cumulative sentences bearing in mind the totality principle.

[2] The appellant appeals against only one of the sentences imposed by Judge Adeane. This was in respect of one charge of assault on a child. The Judge adopted a starting point of nine months’ imprisonment and reduced the sentence by 10% to eight months’ imprisonment to take account of a delayed guilty plea.

Grounds of appeal

[3] The appeal is brought on the following grounds:

(a) The starting point on the assault on a child charge was too high;

(b)The discount for the guilty plea on the assault child charge was inadequate;

(c) In all the circumstances of the case the sentence was manifestly excessive.

Facts

[4] The summary of facts describes an incident which arose at the address which the appellant was sharing with his then de facto partner. The partner’s son, aged 10, also lived at the address. On the day in question the appellant’s son, who is older than the victim, was visiting. The victim and the appellant’s son were involved in a play fight which escalated into a real fight. The summary of facts records:

As a result of this [the appellant] has then joined in and told his son ―this is how you do a Charlie‖ and proceeded to punch the victim forcefully to his leg.

As a result of this the victim has limped from the address to a neighbours house where he thought he would be safe.
According to the victim this was a substantial blow which left some bruising. When spoken to about this incident a number of days later [the appellant]
admitted punching the victim in the leg but said it was all play fighting.

Defence submissions

[5] Mr Phelps for the appellant submits that the circumstances of the offence warranted a starting point of no more than three months’ imprisonment. Further, a discount of at least 20% ought to have been applied.[1]
[1] In accordance with Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607

[6] In support of the submissions Mr Phelps cites the following: (a) The offending was not premeditated;
(b) There was a single blow to the child’s leg;

(c) The offending did not involve the use of a weapon;…

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 Mabry v Police HC Napier CRI-2011-441-34

Details

AGLC: Mabry v Police HC Napier CRI-2011-441-34 [2011] NZHC 1635
Case: [2011] NZHC 1635
Decision Date: 27 October 2011

CaseChat Overview and Summary

The High Court heard an appeal from Bruce Mabry against a sentence imposed by the District Court. Mabry was sentenced to 28 months' imprisonment for various offences, including assault on a child. The appeal contested the sentence for the assault charge, arguing it was excessive and that the discount for a guilty plea was inadequate. The court considered whether the starting point and discount applied by the District Court were appropriate. The Crown argued that the sentence was within the proper range given the circumstances and the appellant's criminal history. The High Court reviewed the totality of the sentence and found that while the sentence for the assault charge was slightly excessive, the overall sentence was not clearly inappropriate. The Court allowed the appeal in part, reducing the sentence for the assault charge and adjusting another charge, but confirmed the overall sentence remained at 28 months' imprisonment.

Orders