Pathiranage v Police - [2013] NZHC 738

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-000008 [2013] NZHC 738

CHANAKA SANDAMAL SERASINGHE PATHIRANAGE
Appellant
v
POLICE
Respondent

Hearing: 8 April 2013

Counsel: J K Fraser for Appellant
R W Donnelly for Respondent

Judgment: 8 April 2013

JUDGMENT OF WHATA J

[1] Mr Pathiranage assaulted his wife by putting his hands around her mouth and squeezing, digging his fingernails into her cheeks. After she pushed him away, he repeated his actions and removed his hands to her neck pinning her to the bed by putting pressure on her throat. The following day, in another confrontation with his wife, Mr Pathiranage kicked her in the thigh, grabbed her and put his hand over her mouth. He also retrieved a large butcher’s knife from the kitchen and pointed the tip of the knife at her, and acted out stabbing her with the knife handle. He also shouted that he would stab her. The victim suffered injuries by way of scratches to her cheek, sore mouth, sore left arm, sore wrists and pain in the chest.

[2] Mr Pathiranage now appeals against sentence, that is a sentence of nine months imprisonment for charges of possessing an offensive weapon, male assaults

PATHIRANAGE V POLICE HC INV CRI 2013-425-000008 [8 April 2013]

female and threatening to kill or do grievous bodily harm. He says that the sentence was manifestly excessive. His counsel, Mr Fraser, also contends that the District Court Judge:

(a) Was erroneously influenced by the nationality of the appellant;

(b) Did not have proper regard to the appellant’s previous good character;

(c) Was inherently contradictory, with the District Court Judge appearing to treat the offending as having a very significant impact on the victim while at the same time acknowledging that “it .... does not appear to be significant”;

(d) Had erroneous regard to the likelihood of deportation;

(e) Had erroneous regard to the likelihood of reconciliation when the appellant was likely to be deported;

(f) No serious consideration was given to home detention; and

(g)The Judge failed to have regard to the relatively young age of the appellant.

[3] The nub of the case for the appellant really is that insufficient weight was given to relevant discounting factors with the result that the sentence overall was manifestly excessive.

Notes of sentencing

[4] Judge KJ Phillips canvassed the relevant background facts. He identified that a particularly aggravating feature of the offending is that both the accused and the victim are from Sri Lanka. In terms of the victim, he noted:

[4] .... She is here to study. She has no family, no real people of Sri
Lankan nationality to turn to or go to, because if she did her family would

find out. They would be ashamed and angry with her and she would become again victimised by your brutality towards her. ...

[5] The Judge refers to the pre-sentence report where it is recorded that the appellant attributes blame to the victim. He also notes that the appellant…

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 Pathiranage v Police

Details

AGLC: Pathiranage v Police [2013] NZHC 738
Case: [2013] NZHC 738
Decision Date: 8 April 2013

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against sentence by Pathiranage, who was convicted of charges including male assaults female, possessing an offensive weapon, and threatening to kill or do grievous bodily harm. The appellant, Pathiranage, argued that the nine-month imprisonment sentence was manifestly excessive. His counsel contended that the District Court Judge made several errors in the sentencing process, including not considering the appellant’s previous good character, being influenced by the appellant’s nationality, and not considering home detention as an alternative to imprisonment.

The court examined the legal issues raised by the appellant, including whether the sentence was manifestly excessive and if the District Court Judge made any errors in the sentencing process. The court considered relevant case law and found that the sentencing range for such offences typically falls between nine months to two years imprisonment. The court found that the appellant's arguments did not establish that the sentence was manifestly excessive. The court rejected the appellant's claims that the District Court Judge made errors in the sentencing process, and the court found that the sentence was not manifestly excessive.

The High Court of New Zealand dismissed the appeal and upheld the sentence of nine months imprisonment for the appellant. The court found that the appellant's arguments did not establish that the sentence was manifestly excessive, and the court rejected the claims that the District Court Judge made errors in the sentencing process.

Orders