McEwan v Police HC Invercargill CRI-2011-425-000015

[2011] NZHC 866

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000015

STEPHEN JACK MCEWAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 July 2011

Appearances: S Williamson for Appellant

M Mika for Respondent

Judgment:      5 July 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty to assault with intent to injure, male assaults female, and threatening to kill or cause grievous bodily harm, as well as three charges of using a document, the appellant was sentenced to a total of two years, three months imprisonment. This is an appeal against that sentence

The offending

[2]      Given that the dishonesty offending occurred first in time, I will begin with that offending.  The appellant took two cheques from a cheque book belonging to his aunt and uncle, wrote out a cheque for $400, and then tried to cash in the cheque

through an associate.  He failed.

MCEWAN V NEW ZEALAND POLICE HC INV CRI-2011-425-000015 5 July 2011

[3]      Now  I  turn  to  the  offending  involving  violence.    After  the  victim,  the appellant’s partner, returned home and found the appellant and  his friend in an intoxicated state and the apartment in a mess, there was an argument between the appellant and the victim.  The victim pushed the appellant and told him to shut up. The appellant raised his fists but his friend stopped him from taking any further action.  But, the appellant then grabbed the victim around her throat, squeezed for about 15 seconds, and pushed the victim sideways, as a result of which the victim’s head hit a cupboard.  The appellant’s friend then wrestled the appellant away from the victim, and the appellant and his friend went to a neighbouring address.

[4]      Unfortunately, at a later point in time, the victim followed and there was a further argument.   This resulted in the appellant head-butting the victim.   Again others intervened.  As the appellant was head-butting the victim he told her that he was going to burn her house down with her tied to a chair.   He also said that she deserved to have her throat cut.

[5]      Fortunately the injuries to the victim were relatively minor.   No hospital treatment was required.

The appellant

[6]      At  the  age  of  20  years  he  has  a  relatively  formidable  list  of  previous convictions.  However, of those convictions, 42 relate to using documents in 2008. In March 2009 the appellant was sentenced to nine months imprisonment for male assaults female (2), threatening to kill (2) and also for the 42 charges of using a document.  Later that year he received nine months imprisonment for threatening to kill and some other offending.   He also has previous convictions for burglary and contravening a protection order.

[7]      The probation officer’s report traverses an extremely difficult upbringing.  It appears that alcohol and drugs are a major problem with the appellant and he is something of a “Jekyll and Hyde” character. According to the probation officer there is a high risk of re-offending and the appellant poses a high risk to others.   A custodial sentence was recommended.

[8]      It was the Judge’s view that protection of the community was the primary consideration.   He expressed concern about what the appellant would do next. Aggravating features noted by the Judge were the attack to the head, strangulation, and prior convictions.

[9]      Adopting a global approach which encompassed the three offences involving violence plus an uplift for the previous convictions, the Judge arrived at a starting point  of  two  and  a  half  years.    He  then  added  six  months  for  the  dishonesty offending.  From the resulting three years, the Judge deducted nine months (which seems to have been approximately 25%) for the guilty plea.  Thus he arrived at a final sentence of 27 months imprisonment (two years three months).  In reaching that conclusion  the  Judge  commented  that  he  had  regard  to  relevant  decisions,

particularly R v Puke[1] “where similar offending resulted in a sentence in this range”.

This appeal

[1] R v Puke [2009] NZCA 582

[10]     Comprehensive submissions were advanced by Mr Williamson in support of his primary submission that the sentence is manifestly excessive.   Mr Williamson submitted that the starting point of two and a half years for the violent offending had not been arrived at in accordance with the approach described in R v Taueki[2] and that it is out of step with cases involving similar offending.   He noted  R v McRoy, R v Bisschop[3], Kincaird v R[4]¸ all decisions of the Court of Appeal.  Reference was also made to Marsh v NZ Police[5] (a decision of this Court), R v Puke, R v GWatkin[6] and Police v Edmonds[7].  Mr Williamson also submitted that the starting point is out

of step with R v Harris[8].

[2] R v Taueki [2005] NZLR 372

[3] R v Bisschop[2008] NZCA 229

[4] Kincaird v R [2010] NZCA 384

[5] Marsh v NZ Police CRI 2008 425 16 [1 July 2008]

[6] R v Gwatkin [2002] CA228/02

[7] Police v Edmonds [2001] AP24/01

[8] R v Harris [2008] NZCA 528

[11]     Although it is accepted by Mr Williamson that a cumulative sentence for dishonesty was appropriate, his submission is that the six months uplift to reflect that offending was manifestly excessive.  In his submission the starting point should have been closer to two months.

[12]     For the respondent, Mr Mika, observed that sentencing for multiple offending is difficult.  He suggested that any approach based on the individual offences would have been unrealistic and that the global approach adopted by the Judge was appropriate.   Although he acknowledges that the sentence was at the top of the available range, it is his submission that it was, nevertheless, within range.

Discussion

[13]     Clearly this was a difficult sentencing exercise.  When it comes to appeals against sentence, the starting point is of limited assistance and it is the end result that counts. The issue is whether the end result in this case is manifestly excessive.

[14]     With the benefit of the submissions advanced by Mr Williamson I have been persuaded that this sentence is manifestly excessive.   I agree with Mr Williamson that it is difficult to reconcile the end sentence with the cases that he has cited.  In particular I note that R v Puke, which was obviously influential in the reasoning of the Judge, involved injuring with intent to injure, not assault with intent to injure. Thus  Puke  involved  a  significantly more  serious  charge  and  did  not  provide  a meaningful comparison.

[15]     Although there were three separate charges in this case, the reality is that they arose from a series of connected events.  Moreover, in this case, the complainant has apparently taken the first physical step by pushing the appellant and then, after the initial offending had finished and the appellant and his associate had left the house, she followed them.  While this does not excuse the appellant’s subsequent offending, it is nevertheless highly relevant to the appellant’s culpability.

[16]     I am  satisfied  that  the sentence is  manifestly excessive.    Using the best judgment that I can, it seems to me that the appropriate sentence in this case is

21 months imprisonment.  That reflects a reduction of six months from the sentence imposed by the Judge.   Although that sentence potentially gives rise to issues of home detention, there is no suggestion that home detention should be granted and I do not consider that possibility any further.

[17]     The  sentence  of  21  months  imprisonment  will  be  made  up  as  follows:

18 months on the assault with intent to injure, together with concurrent sentences of

18 months on the male assaults female, and threatening to kill/cause grievous bodily harm; in addition there will be a cumulative sentence of three months imprisonment on the first charge of using a document and concurrent sentences of three months on the other two charges of using a document.

[18]      There will be the usual conditions of release plus the following conditions:

(a)      The appellant is to undertake a drug and alcohol assessment and any further counselling including residential treatment to the satisfaction of the treatment provider and as directed by the Probation officer. The provider of the assessment and counselling is to be determined by the probation officer.

(b)He  is  also  to  undertake  a  domestic  violence  programme  to  the satisfaction of the counsellor and as directed by the probation officer. The provider of that counselling is to be determined by the probation officer.

(c)      And   he   is   to   undertake   any   other   treatment,   counselling   or programmes  as  considered  appropriate  and  as  directed  by  the probation officer.

These conditions will apply for a period of six months from release.

Solicitors:

Malcolm McKenzie Law Ltd - Hewat Galt Lawyers, PO Box 11, Invercargill 9840

Preston Russell Law, PO Box 355, Invercargill 9840