Newport v The Queen

[2005] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/05

THE QUEEN

v

PAUL LEONARD NEWPORT

Hearing:31 August 2005

Court:William Young, Baragwanath and Goddard JJ

Counsel:M B Ryan for Appellant

M D Downs and S Walker for Crown

Judgment:1 September 2005 

JUDGMENT OF THE COURT

Appeal dismissed.

____________________________________________________________________

REASONS

(Given by Baragwanath J)

[1]       The appellant challenges on appeal the sentence of two and a half years imprisonment imposed by the District Court at Napier on a charge of injuring the female complainant with intent to injure her.  Mr Ryan did not appear in the District Court where the appellant represented himself.  He did not challenge the starting point of two and a half years imprisonment following the defended hearing but submitted that the sentence failed properly to allow for mitigating factors.  Since through no fault of the appellant’s certain testimonials prepared for the District Court hearing were not tendered to Judge Rea we have reconsidered afresh the sentence imposed.

[2]       In his reasons for decision at the conclusion of the judge alone trial the Judge found that in the afternoon of 23 January 2004 the appellant was with the complainant and her daughter, a special needs child of about ten or eleven.  The appellant had been driving the complainant and the child in Palmerston North towards Sanson when the child required a toilet stop.  There was a dispute which the Judge found unnecessary to resolve whether as a result the appellant was unable to take part in a hotel jackpot.  But having reached the Sanson house where the couple lived the appellant decided that he no longer wished the complainant to live at his house and that he would take her and her child back to Hastings where the pair had previously lived. 

[3]       The complainant deposed that at the Sanson house the appellant struck the complainant in the face with his fist and that the assault continued out into the backyard.  She recounted being repeatedly struck in the face, falling down and being kicked in her back and legs and to the back of her ear.  She said that she remembered the appellant grabbing her by the arms and pulling her and she became confused about what was happening.  She said that she remembered him requiring her to enter the motor vehicle against her will.

[4]       Independent witnesses who were driving past saw what was plainly the appellant’s car on the side of the road and the driver punching the person in the passenger’s seat.  One witness observed the driver hitting someone with a closed fist in the front seat of the car.  Taking exception to this he opened the door of the appellant’s car and remonstrated with him and a tussle followed.  Another witness saw a male hitting someone in the vehicle and phoned 111 and then saw the complainant either fall or being pushed out of the passenger’s door.  A third witness saw deliver the appellant deliver four or five punches to a woman in the front seat of the car. 

[5]       A police constable described the complainant’s condition very shortly afterwards.  He said she had quite severe bruising to her face, around her eyes, blood was running from her mouth.  There was blood on the other side of her mouth which was quite substantial, congealed like dried blood.  Another officer described her as badly injured.   We endorse the Judge’s description of the photographs as showing that a significant beating had been administered to the complainant.  She had black eyes, bruising, considerable facial swelling and injuries to various parts of her body consistent with her evidence about what had happened to her.

[6]       The Judge rejected the appellant’s evidence that the complainant had gone berserk at his house and that he had only slapped her; and that some of her injuries resulted from her striking her head or other parts of her body on various pieces of furniture or walls in the house.  He said that in the car she again lost control of herself and arms and legs were flying as she tried to assault him and he tried to fend her off so he could drive.  The Judge said:

[53]     The difficulty with the Accused’s evidence in that regard is that Mr Taura, Ms Pinfold and Mr Davis were actually adamant that blows were struck to such a degree that Mr Taura felt the need as a stranger to interfere, effectively to protect the Complainant from further beating.  They speak of arms and legs flying, there is no doubt about that, but their evidence goes much further than that and describes deliberate, forceful blows being inflicted by the Accused on the Complainant in the motor vehicle and it has to be said that the observation of the Police Officers, the fact that the complainant spent time in hospital, and the photographs speak volumes for the accuracy of what they have to say and what the Complainant has to say.

It is clear that the Judge essentially accepted the evidence of the complainant.

[7]       In his sentencing remarks the Judge summarised his findings, describing the offending as occurring at three separate locations – one his house in Sanson, a second in the motor vehicle on one side of the main road at Sanson and the third in the same vehicle on the other side of the road at Sanson.  He concluded that the appellant had lost his temper in a very, very significant way and to alleviate his temper resorted to considerable violence.  He added that in the conduct of his case the appellant “took some pleasure in putting her through the ropes in the course of the hearing” by maligning her character. 

[8]       The pre-sentence report recorded that at the time of his offending the appellant was a man of 44 and had known the complainant for twenty years.  The report described the appellant as having a propensity for violence and referred to his previous convictions for common assault in 1980, fighting in a public place in 1995, threatening to kill, doing grievous bodily harm, doing wilful damage and assaulting a female in 1997 and wilful damage in 1998.  The probation officer described the appellant as “appear[ing] to present with power and control issues”.  She described his risk of reoffending as high because of propensity for violence and lack of victim empathy with both the complainant and prior victims.

[9]       In the written submissions of counsel for the appellant filed on 12 August he recorded his instructions that the appellant had not seen the pre‑sentence report until the day before sentencing.  At the hearing in this Court Mr Ryan told us that more recently he had been instructed that the appellant had in fact never seen the pre‑sentence report; that what was seen the day before sentencing, when he again represented himself, was another document.

[10]     Mr Ryan submitted that the eight testimonials that had been prepared for the sentencing hearing and a further four that were presented to this Court show, he said, that the appellant was not at high risk of further offending: the risk is low to medium; the testimonials show that the appellant is a hard worker who has contributed to the community as a coach of youth soccer and rugby.  Had the appellant had copy of the pre-sentence report he would have challenged the opinion of high risk of reoffending because of propensity of violence by reference to his testimonials.  Since 1997, when he move away from former associates, his record has improved.  These are all elements of good, or at least improved, character for which he should receive credit.

[11]     For the Crown Mr Downs submitted that the testimonials did not establish the appellant to be a man of good character.  Rather they provide general evidence of some features tending to balance some aspects of the appellant’s poor previous record.

Discussion

[12]     Having considered the case afresh in the light of Mr Ryan’s careful written and oral submissions we respectfully agree with the learned Judge’s conclusions and his reasons for them.  The appellant’s list of previous offences covers more than three pages and includes a mixture of offences of violence and dishonesty as well as traffic and cannabis offending.  While his pattern of offending has improved since 1997 we are not persuaded that he should be treated as having undergone fundamental change, as Mr Ryan submitted.

[13]     Mr Ryan correctly acknowledged that the starting point of the Judge’s sentence could not be challenged.   The appellant had previously been convicted of assault on another female and threatening to kill her. This was a further violent attack on a female who was in no position to defend herself.  It was sustained and terminated only by the intervention of a passer-by on whom the appellant then turned. The submissions about the appellant’s general character must be evaluated against his criminal history and, importantly, the circumstances of the present offending.

[14]     We are satisfied that the sentence imposed was both appropriate and necessary to denounce the appellant’s conduct, to hold him accountable for the harm he has done and to deter him and others from such offending. 

[15]     The appeal must be dismissed.

Solicitors:
M B Ryan, Palmerston North for Appellant
Crown Law Office, Wellington