Merrill v Police - [2016] NZHC 2140

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-31 [2016] NZHC 2140

BETWEEN
SAVANNAH SERENE MERRILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 September 2016

Appearances:

D W Hart for the Appellant
J W Wall for the Respondent

Judgment:

9 September 2016

JUDGMENT OF MUIR J (SENTENCE APPEAL)

This judgment was delivered by me on Friday 9 September 2016 at 3.30 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
D W Hart, Barrister, Whangarei
J W Wall, Crown Solicitor, Whangarei

MERRILL v NEW ZEALAND POLICE [2016] NZHC 2140 [9 September 2016]

Introduction

[1] Ms Merrill appeals from a sentence of seven months’ home detention imposed in relation to two charges of assault with intent to injure, one charge of assault and one charge of assault on a police officer acting in the execution of her duty, all of which charges were the subject of guilty pleas.

[2] The charges arose out of two separate incidents.

[3] On 30 August 2015 Ms Merrill entered the hotel Motueka with male associates. She was carrying a bottle of beer (described by her counsel as a “stubbie”) and walked through the main entrance to the bathroom area. Meanwhile her associates were approached by the bar manager who requested them to leave because she did not consider them old enough to be in an unsupervised bar. At that stage Ms Merrill walked out of the bathroom area. The manager requested that she hand over the bottle in her hand. Ms Merrill refused to do so and emptied the contents of it over the victim’s head. Having done that she pushed the victim with one hand hitting her in the chest and face and then hit her on the top of the head with the empty bottle. At that point one of her associates walked up behind the victim, grabbing her by the hair and forcing her to the ground at which point Ms Merrill kicked the victim in the legs.

[4] The victim received a lump to her head, a cut to her nose and slight bruising to her face. The (amended) charge faced in respect of the offending was assault with intent to injure.

[5] Three weeks later, and while on bail for this offending, Ms Merrill was involved in a further incident with her father and one of her father’s associates at her father’s home where she was living. She had returned from work at approximately 5 pm. Her father and others at the address had been drinking and were intoxicated. Ms Merrill became frustrated and angry at the behaviour of the victims and began throwing household items at them and breaking other items on the floor.

[6] One such projectile was thrown at her father causing a laceration of approximately five cm in length on the right side of his head. A saucepan was thrown at another occupant causing bruising to his forehead.

[7] Ms Merrill was arrested as she attempted to leave 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 Merrill v Police

Details

AGLC: Merrill v Police [2016] NZHC 2140
Case: [2016] NZHC 2140
Decision Date: 9 September 2016

CaseChat Overview and Summary

Ms Savannah Serene Merrill appeals against a sentence of seven months' home detention imposed in relation to four charges of assault, following a guilty plea. The charges arose out of two separate incidents. The first incident occurred on 30 August 2015, when Ms Merrill entered a hotel with male associates and was carrying a bottle of beer. The bar manager requested her to hand over the bottle, which she refused to do, subsequently emptying the contents over the victim's head, hitting her in the chest and face, and hitting her on the top of the head with the empty bottle. The second incident occurred three weeks later while Ms Merrill was on bail for the first incident. At her father's home, she threw household items at her father and another occupant, causing injuries. Ms Merrill spat at the arresting officer as she was attempting to leave the address.

The District Court sentenced Ms Merrill to 15 months' imprisonment, which was then commuted to seven months' home detention. The appeal focuses on the starting point adopted for the 30 August incident, with the appellant arguing that the starting point was too high. The Crown conceded that the starting point for the 30 August incident was excessive but argued that the subsequent offending was more serious and justified a sentence of 18 months' imprisonment.

The court found that the starting point for the 30 August incident was indeed too high, but the overall assessment of criminality justified a combined starting point of approximately 28 months' imprisonment. The court concluded that the end sentence was not manifestly excessive and dismissed the appeal.

Result: The appeal is dismissed, and the sentence of seven months' home detention stands.

Orders