Nortje v Police

[2019] NZHC 334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-418

[2019] NZHC 334

BETWEEN

JAMES NORTJE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 March 2019
Appearances:	S J Galler for Appellant S Teppett for Respondent
Judgment:	4 March 2019

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 4 March 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

NORTJE v NEW ZEALAND POLICE [2019] NZHC 334 [4 March 2019]

[1]    Mr Nortje pleaded guilty in the District Court to a charge of assault with intent to injure. On 19 November 2018, Judge G A Fraser rejected Mr Nortje’s application for a discharge without conviction under s 106 of the Sentencing Act 2002.1 The Judge then sentenced Mr Nortje to two months community detention.

[2]    Mr Nortje appeals against sentence on the basis that the Judge ought to have imposed a sentence of community work rather than community detention.

The offending

[3]    The charge was laid as a result of an incident that occurred on the morning of Sunday 1 October 2018. On that date Mr Nortje was with his partner at an apartment where they were living. The victim of Mr Nortje’s offending was his partner’s former boyfriend, who lived in the same apartment complex.

[4]    Mr Nortje and his partner got into an argument. The victim arrived a few minutes later and Mr Nortje let him into the apartment. After the victim had entered the apartment, Mr Nortje approached from behind and punched him numerous times in the back of the head. This caused the victim to fall to the ground. Mr Nortje then continued to punch him, hitting him around his face and head.

[5]    Mr Nortje then let the victim get up, at which point the victim tried to help Mr Nortje’s partner leave the apartment. Mr Nortje ran towards the victim and knocked him to the ground again with a forceful shoulder charge. He then kicked him repeatedly to the head and left ear area whilst he was on the ground. A short time later both Mr Nortje’s partner and the victim managed to escape from the address and call the police. When the police asked Mr Nortje for an explanation, he said he needed to put the victim in his place, and that this “had been coming for a long time”.

[6]    As a result of the offending the victim suffered sustained multiple injuries including a bleeding nose, a cut on the bridge of his nose and bleeding from his left ear. He also suffered contusions. The Judge recorded that the offending has also had very serious emotional and financial consequences for the victim.

1      New Zealand Police v Nortje [2018] NZDC 27321.

The sentence

[7]    Counsel for the police contended the offending warranted a starting point of around 12 months imprisonment, but accepted that a community-based sentence could achieve the sentencing purposes of deterrence and denunciation. The Judge adopted a starting point of four months community detention. He then reduced that by one month to reflect rehabilitative steps Mr Nortje had taken and a further month to reflect his guilty plea. This resulted in the end sentence of two months community detention. The sentence requires Mr Nortje to be present at his home address between the hours of 9 pm and 6 am each day.

Argument on appeal

[8]    On Mr Nortje’s behalf, Mr Galler has referred me to sentencing authorities in which sentences of community work have been imposed for offending that he contends is of similar, or greater, seriousness than the offending in the present case.2 He submits the Judge erred in principle by imposing a sentence of community detention and ought to have imposed the lesser sentence of community work.

[9]    Mr Nortje has already served one-half of the sentence the Judge imposed. When I asked Mr Galler why Mr Nortje seeks an alternative sentence at this late stage, he advised me that Mr Nortje feels uncomfortable being out and about in the community  during  non-curfew  hours  wearing  an  electronic  bracelet.  He  says Mr Nortje is also concerned that the curfew may interfere with a job offer he has received for a position as an unregistered electrician.

Decision

[10]   I consider Mr Nortje was extremely fortunate that the Judge adopted a starting point of just four months community detention. Offending involving an unprovoked and sustained attack of this seriousness could easily have attracted a starting point of six to 12 months imprisonment, notwithstanding the absence of previous relevant convictions. A sentence of home detention could also easily have been justified given

2 Mizsey v New Zealand Police [[2017] NZHC 3130; SS v New Zealand Police [2015] NZHC 3103.

the ongoing effects of the offending on the victim. The Judge therefore adopted an extremely lenient approach in relation to the issue of starting point.

[11]   For these reasons I fail to see how the end sentence of two months community detention could possibly be viewed as manifestly excessive or wrong in principle.

Result

[12]The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland Counsel:

S J Galler, Barrister, Auckland