Oxenham v Police - [2015] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-178 [2015] NZHC 2156

BETWEEN
WILLIAM OXENHAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
31 August 2015 (Supplementary submissions filed on 2 and 4

September 2015)

Counsel:

B Murphy for Appellant
C McCool for Respondent

Judgment:

7 September 2015

JUDGMENT OF ANDREWS J

This judgment was delivered by me on 7 September 2015 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Counsel:
B Murphy, Auckland

OXENHAM v NEW ZEALAND POLICE [2015] NZHC 2156 [7 September 2015]

Introduction

[1] On 5 June 2015, Mr Oxenham was convicted and sentenced by Judge K Glubb in the District Court at Waitakere to one charge of male assaults female. He applied for a discharge without conviction, but that application was declined.1
Mr Oxenham now appeals against that decision.

Relevant Facts

[2] Mr Oxenham is in his mid-fifties. At the time of his offending, he and the complainant had been in a relationship for around three-and-a-half years and were living together. In the early hours of the morning of 8 September 2014, Mr Oxenham returned home from a night spent drinking with friends. An argument developed between Mr Oxenham and the complainant around her use of his vehicle and money missing from his wallet.

[3] Mr Oxenham then pushed the complainant over and punched her in the leg several times with a closed fist. He then punched her in the back several times before punching her several times in the head. The complainant tried to cover her head with her arms. Mr Oxenham then grabbed her by the head and pulled her hair, tearing some of it out.

[4] The complainant suffered bruising and swelling to her face and both arms. She also had a cut on her face and lost some hair. As a result of the assault, she ended her relationship with Mr Oxenham, although she supported his application for discharge, and reported that he never previously assaulted her.

District Court Decision

[5] The Judge considered that Mr Oxenham’s offending was moderately serious and placed it around the middle of the spectrum for this kind of offending. His conclusion was based in particular on the fact that the offending occurred in a domestic setting. Additionally, the sustained nature of the violence and the fact that
it involved attacks to the head meant the offending could not be described as being at

1 Police v Oxenham [2015] NZDC 12189.

the lowest end. On the other hand the Judge accepted that Mr Oxenham had entered a guilty plea quickly and that he had completed a court-directed program addressing domestic violence. These factors, combined with Mr Oxenham’s good character somewhat reduced the seriousness of the offending.

[6] Against that, the only consequence before the Judge was the comment from Mr Oxenham’s then employer that “the path for advancement is still open for [Mr Oxenham] as he has always been a loyal and trustworthy employee. However, a criminal…

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 Oxenham v Police

Details

AGLC: Oxenham v Police [2015] NZHC 2156
Case: [2015] NZHC 2156
Decision Date: 7 September 2015

CaseChat Overview and Summary

William Oxenham appeals against his conviction and sentence by Judge Glubb in the District Court at Waitakere, which involved one charge of male assaults female. The appeal follows the refusal of an application for a discharge without conviction. The relevant facts of the case involve Mr Oxenham assaulting the complainant, who was his partner at the time, in a domestic setting. This resulted in significant injuries to the complainant, including bruising, swelling, and hair loss. The District Court assessed the seriousness of the offending as moderately serious, considering factors such as the sustained nature of the violence and the fact that it involved attacks to the head. The court also considered the consequences of a conviction for Mr Oxenham, including the potential harm to his future employment. However, the court ultimately concluded that the consequences of a conviction were not out of all proportion to the gravity of the offending, and refused a discharge without conviction.

The legal issues the court was required to decide include whether the fresh evidence presented by the appellant should be admitted, and whether the consequences of conviction are out of all proportion to the gravity of the offending. The court admitted the fresh evidence, as it showed that the situation for Mr Oxenham is fundamentally different from that which the Judge considered, and failure to consider the true situation would not only be irrational, but also lead to a clear miscarriage of justice.

The court's reasoning and outcome involved a rehearing of the appeal, with the High Court making a new assessment in accordance with its own opinion. The court considered the seriousness of the offending, the consequences for Mr Oxenham, and whether those consequences are out of all proportion to the offending. The court accepted that the offending was moderately serious, but out of character for Mr Oxenham, who had taken steps to address the issue. The court also accepted that the likely consequences of conviction are moderately serious, as Mr Oxenham faces a clear risk of being out of work as a result of a conviction. Ultimately, the court accepted that these consequences are out of all proportion to the offending, and exercised its discretion to discharge Mr Oxenham without conviction.

The final orders of the court involved allowing the appeal against sentence, quashing the conviction and sentence, and discharging Mr Oxenham without conviction pursuant to s 106 of the Sentencing Act.

Orders