P v Police HC Wellington CRI 2009-485-128

[2009] NZHC 2058

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-128

P

v

NEW ZEALAND POLICE

Hearing:         3 November 2009

Counsel:         G R Fulton for Appellant

I Murray for Respondent

Judgment:      4 November 2009

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr P   was sentenced to ten months two weeks home detention.  He had pleaded guilty to:

a)        assault with intent to injure (nine months);

b)        attempting to pervert the course of justice (six weeks cumulative);

c)        6 x breach of protection order (two months, concurrent).

P V NEW ZEALAND POLICE HC WN CRI 2009-485-128  4 November 2009

[2]      It is submitted that the overall sentence is too long.  Particularly it is said that the allocation for the assault was excessive, and represented a disproportionate share of the overall culpability.

Facts

[3]      Mr P   taught piano.   He formed a relationship with a pupil who was sixteen at the time.   Her parents disapproved, primarily because Mr P   was aged forty at the time.  The parents sought and obtained a protection order; however, it  was  not  then  used  or  even  served  because,  independently  and  unconnected, Mr P   had left for overseas travel and work.

[4]      He  returned  thirty months  later.    The  relationship  resumed.    The  young woman was now nineteen.

[5]      The  assault  charge  arose  when  Mr P    questioned  her  about  other relationships.  The venue for this event was his bedroom.  Mr P   seemingly got angry over the responses.  The assault consisted of Mr P   throwing the victim around, and preventing her leaving on several occasions.  One such episode caused her to crash into the wall and hurt her tailbone.   Mr P   was also verbally abusive.   As noted, he several times stopped her leaving and tried to prevent her calling for help.  Eventually Mr P   released her and she left.  A complaint was laid.  The victim suffered bruising to various parts of her body and the assault has had on-going psychological impacts.

[6]      Mr P   is keen for the facts to be recorded as he recalled the event. Accordingly he queries the Judge’s description of him “ripping her hair out”, preferring it to be noted that during the course of the assault hair came out of her head.

[7]      Another point of dispute was whether Mr P   had tried to strangle the young woman.  A disputed facts hearing was not required because the prosecution accepted sentencing could proceed on the basis that he put his hands on side of her head and held it.  Other points of dispute, once identified, were not pursued on the

basis  that  the  sentencing  Judge,  rightly  with  respect,  indicated  (as  required  by s 24(2)(a) of the Sentencing Act 2002) that she regarded them as points of detail which would not affect the overall assessment of the seriousness of the assault.

[8]      The attempting to pervert the course of justice charge stems from discussions between  the  victim  and  Mr P    about  her  statements  to  the  police,  as  a consequence of which she would contact the police with amendments.  Mr P  ’s position is that it was a joint exercise, and his sole motive was to ensure an accurate picture emerged.  He challenges suggestions he was pressuring her.

[9]      In  February 2009  the  protection  order,  obtained  three  years  earlier,  was served on Mr P  .  This was about one month after the assault.  There are six incidents of breach involving letters, texts, emails, use of another person’s blog to post messages, visit to her parent’s house.  These breaches also amounted to a breach of Mr P  ’s bail conditions, which in turn led to a custodial remand.

Decision

[10]     I begin by observing that the time spent on remand, approximately three months, was overlooked in the sentencing exercise.   I propose a two month adjustment to reflect that.

[11]     I otherwise do not accept the appeal points.  Mr Fulton presented the case as well as it could be, but it lacks merit.  It was a prolonged assault borne of jealousy. It involved injury in the form of the hair being pulled from the victim’s head and bruising to several parts of the body.  The victim was thrown around and detained against her will.  Certainly the case lacks the more serious features sometimes found, but the charge reflects that.   The core of the charge is assault, and that is correct. Mr P   acknowledged by his plea an intention to injure the victim.

[12]     The Judge had assessed the overall offending for all the charges, after plea, as meriting a twenty-one month sentence.   Of that twenty-one months, the Judge notionally allocated eighteen months to the assault.   Mr Fulton observes that the

starting point must therefore have been about two years, which is submitted to be excessive against a three year maximum.

[13]     Certainly a two third starting point is stern, but it was available.  Further, the Judge first fixed the overall culpability, and then second allocated within it.   The Court  cannot  overly  concern  itself  with  the  balance  within  a  sentence;  the proportions could be different, but nine months home detention is not excessive given the duration, the force and the detentions involved in the assault.

[14]     For myself I consider Mr P   has little to complain about; there were positive features in the various reports and home detention was an available option. I do not in any regard criticise its imposition, but not all Judges would necessarily have gone that way.  That is of course to say no more than it is indeed a discretion which inevitably will be exercised in different ways.

[15]     The adjustment for pre-trial custody will be to the lead sentence so a change of the type sought is achieved, albeit for different reasons.   Again, as long as the sentence is not wrong, one cannot be concerned about how a later court might assess the assault in light of the sentence.  It is an unappealing concern, and as Mr Fulton himself observed, an answer to it is to ensure there is no further occasion on which a Judge might be looking back.

[16]     The appeal is allowed.  The sentence of home detention is reduced to eight months two weeks.  This change is effected by reducing the term on the assault to

seven months home detention.

Solicitors:

G R Fulton, Barrister, PO Box 30776, Lower Hutt

Simon France J

I Murray, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]