Nicholson v Police
[2015] NZHC 3341
•22 December 2015
IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
CRI 2015-454-28
[2015] NZHC 3341
BETWEEN TAMATI TUHI NICHOLSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 December 2015 Counsel:
E J Forster for Appellant N J Wynne for Respondent
Judgment:
22 December 2015
JUDGMENT OF CLARK J
I direct that the delivery time of this judgment is 11.00am on the 22nd day of December 2015
NICHOLSON v NEW ZEALAND POLICE [2015] NZHC 3341 [22 December 2015]
Introduction
[1] Mr Nicholson pleaded guilty in the District Court to one charge of assault, one charge of male assaults female and three charges of wilful damage. A sentence of 18 months and two weeks imprisonment was imposed.1 The two weeks imprisonment was for remission of fines totalling $1,543.33.
[2] Mr Nicholson originally appealed the sentence on three grounds: that it was manifestly excessive, there was no consideration of the totality principle and relevant matters were not considered when home detention was refused. In the course of the hearing of the appeal Mr Forster, for the appellant, submitted that this third ground was no longer advanced.
Facts
[3] In February 2015 the appellant and victim were at their home address in Dannevirke. They began to argue and the appellant attempted to take the victim’s cell phone from her. When she would not surrender the phone the appellant reached into the victim’s bag and removed her electronic tablet which he then broke over his knee. He managed to take her cell phone from her and threw it on the floor causing it to smash. The appellant proceeded to smash up a bedroom causing further damage. The appellant then entered the hallway and grabbed the victim by the throat and pinned her against the wall. While holding the victim by the throat with one hand he drew back his other arm and held his fist up as if to punch the victim. The appellant’s mother intervened and the appellant then released the victim and left the address. I refer to this episode as “the February 2015 incident”.
[4] The February 2015 incident led to one charge of male assaults female2 and one charge of wilful damage.3
1 New Zealand Police v Nicholson [2015] NZDC 20816.
2 Crimes Act 1961, s 194(b) (maximum penalty two years imprisonment).
3 Summary Offences Act, s 11(1)(a) (maximum penalty three months imprisonment).
[5] In April 2015 while the appellant was on bail for that offending he was at the home of the victim in breach of his bail conditions not to associate with her. She was going to move out. The appellant began to throw her possessions onto a concrete path. The victim telephoned the police. The appellant picked up a 43 inch television set and threw it at the victim. It missed her and smashed on the driveway. The appellant then grabbed the victim pushed her against the house, grabbed her by the hair in an attempt to get her phone from her. She managed to break free. I refer to this episode as “the April 2015 incident”.
[6] The April 2015 incident led to one charge of male assaults female and one charge of wilful damage.
[7] Finally, when remanded in custody in August 2015 the appellant kicked a hole in the wall in the cell block hallway and a charge of wilful damage arose out of that incident.
[8] I note from the Court file that on 14 August 2015 the charge of male assaults female that arose out of the April 2015 incident was amended by consent to the lesser charge of common assault.4
District Court sentencing
[9] The Judge noted the appellant’s previous convictions for assault in 2006 and 2012, three breaches of community work, and some dishonesty offending.
[10] The Judge had regard to the presentence reports that indicated the appellant had “no insight into [his] offending behaviour” and did not accept his alcohol and drug consumption contributed to the behaviour. The appellant’s alcohol consumption was, the Judge said, “astonishing”.
[11] The Judge recognised that counsel sought a sentence of home detention and community work, and that the appellant had completed a short alcohol and drug
4 Crimes Act 1961, s 196 (maximum penalty 12 months imprisonment).
intervention programme while on remand. The appellant’s letter of apology to the victim was recognised.
[12] In terms of sentencing principles the Judge began with deterrence both specific and general: domestic violence, the Judge recorded, is a very significant problem in New Zealand.
[13] The offending was aggravated by having occurred while the appellant was on bail. Also there was an abuse of trust insofar as the violence was against the appellant’s partner. Previous convictions were not “particularly aggravating”.
[14]Some credit was allowed for a guilty plea as it had not been at first opportunity.
[15]The Judge’s reasoning process was articulated in the following way.
[16]For the February 2015 incident:
·12 months for male assaults female and
·two months for wilful damage to be served concurrently with the 12 months.
[17]For the April 2015 incident:
·six months for assault and
·two months for wilful damage to be served concurrently with the six months.
[18]For the damage done in the cell blocks:
·two months to be served concurrently with the six months for assault.
[19] The sentences arising out of the three occasions were imposed cumulatively. Thus the subtotal was 20 months imprisonment.
[20] An uplift of 3 months for previous convictions was imposed, resulting in a subsequent subtotal of 23 months imprisonment. A guilty plea reduction of 5 months (almost 22 per cent) was allowed. $1,543.33 of fines was remitted and two weeks imprisonment substituted. The end sentence was therefore 18 months and two weeks imprisonment.
[21] The appellant was also ordered to pay reparation of $200 in respect of the destruction of the victim’s cellphone and electronic tablet.
[22]A protection order was made in respect of the victim.
Submissions
[23] The submissions of both the appellant and respondent were to similar effect: in combination, the cumulative sentences resulted in an end sentence that was manifestly excessive.
[24] Mr Forster referred to several cases5 with which these facts might be compared and ultimately submitted that the starting point for all charges ought not to have been more than the seven month starting point in Wawatai v Police.
[25] The respondent’s position was that after considering the totality of the offending and mitigating factors the appropriate range is 10–15 months.
Analysis
[26] There are no guideline judgments for the charge of male assaults female. Sentences of imprisonment can range from two to 12 months for single offences. It is often observed that fixing a starting point in cases involving domestic violence is not simple because the circumstances of the cases vary so widely.6
5 Kahika v Police [2015] NZHC 1262; R v Nuku [2012] NZCA 584; Moa v R [2015] NZCA 429; Williams v Police [2014] NZHC 3255; Pukepuke v Police [2014] NZHC 1194; Wawatai v Police [2015] NZHC 406.
6 See for example Wati v R [2015] NZHC 2064 at [18].
[27] I have reviewed relevant case law, not only the decisions to which I have been referred but others.7 They demonstrate that the sentence of 18 months imprisonment was excessive in this case.
[28] While domestic violence must always be regarded as serious, the actual conduct of the appellant during the incidents which led to the charges was at the lower end of the scale that is reflected in cases involving charges of male assaults female. That observation is not intended to understate the effects of the assault on the appellant’s partner who said she received minor bruising and swelling from the February assault. No degree of harm is acceptable. The point is that, for the purpose of fixing a starting point for calculating the sentence, it is necessary to assess the overall criminality of the offending. I have made that assessment on the basis of comparable case law from which it can be seen that starting points of between five and nine months imprisonment are taken in broadly comparable cases.8
[29] Mr Forster submitted the starting point for the February 2015 incident ought not to be higher than in Wawatai v Police where the appellant punched his partner in the face with a closed fist. A starting point of seven months was taken as appropriate for that offending.
[30] While in this case the appellant did not punch his partner he held her by the throat, pinned to a wall, with his arm and fist raised as though to punch her. In my view the violence and intimidation involved in such offending is no less serious and culpable because the victim was not actually struck.
[31] The seriousness of that particular offending is appropriately marked by a starting point of seven months. It was appropriate for the Judge to acknowledge the community concern about the levels of family violence in New Zealand and for the sentence to reflect a strong deterrence element.
7 Nelson-Wright v Police [2015] NZHC 2302; Kumar v R [2014] NZHC 146.
8 Notably the decisions reviewed by Courtney J in Wawatai v Police, above n 5. Those decisions are Grayson v Police HC Hamilton CRI-2006-419-31, 6 April 2006; R v Reihana CA143/03, 26 June 2003; Mann v Police [2012] NZHC 2613 and Williams v Police [2014] NZHC 3255.
[32] In respect of the less serious charge of assault the appellant was sentenced to six months imprisonment. That is unquestionably firm. But the key concern when sentencing for multiple offending is that the final sentence is appropriate in light of the overall criminality of the offending and the offender.9
[33] The Judge then considered the features which both aggravated and mitigated the appellant’s offending. In my view there was no error in the Judge’s analysis.
[34] The appellant may have pleaded guilty but he manifested no insight let alone remorse for his conduct. To the contrary the appellant said he “had to grab her somehow”. As the Judge observed the appellant showed no acceptance that holding someone by the throat can be life threatening.10
[35] Being domestic violence, the offending involved an abuse of trust. Further, the April 2015 incident occurred while the appellant was on bail for the February 2015 incident and in breach of his bail conditions. The Judge uplifted the sentence by three months to reflect these factors and that the second assault was in relation to the same victim. Although Mr Forster submitted that an uplift was unwarranted I do not agree. There was no error in the Judge’s approach to this aspect of the sentence.
[36] The starting point for the charge of male assaults female is seven months. The sentence of six months for assault which the Judge imposed is to be served cumulatively with that charge. The sentences for the remaining three wilful damage offences, three months each, are to be served concurrently with the above, a subtotal of 13 months.
[37] With an uplift of three months a nominal sentence of 16 months imprisonment is reached.
[38] I then apply a 22 per cent discount (three months and two weeks) for the guilty plea. The end sentence is then 12 months and two weeks imprisonment.
[39]The sentence comprises the following:
9 R v Dodd [2013] NZCA 270 at [31]–[33].
10 Police v Nicholson [2015] NZDC 20816 at [6].
CRN 15010000035
Male assaults female
Seven months imprisonment
CRN 15010000073
AssaultFive months and two weeks imprisonment (cumulative with CRN 15010000035)
CRN 15010000036
Wilful damageThree months imprisonment (concurrent with sentences for CRNs 15010000035 and 15010000073)
CRN 15010000074
Wilful damage
Three months imprisonment (concurrent with sentences for CRNs 15010000035 and 15010000073)
CRN 15010000190
Wilful damageThree months imprisonment (concurrent with sentences for CRNs 15010000035 and 15010000073)
Result
[40] The appeal is allowed. The sentence of 18 months and two weeks imprisonment is quashed and substituted with a sentence of 12 months and two weeks imprisonment.
[41] All other orders made by the Judge stand. This means that the two weeks term of imprisonment imposed by the Judge for remission of fines remains and, being for a different matter, is to be served cumulatively on the sentence of 12 months and two weeks.
Solicitors:
Crown Law Office, Wellington for Respondent
Karen Clark J
0
10
0