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 was going to face deportation, while the victim intends to remain in New Zealand to study.  He observes that the accused has serious alcohol abuse problems which are not being managed by the appellant properly.   He also considers that he has serious anger management problems.

[6]      The Judge then refers to the relevant sentencing principles.  He records that the appellant is 26, working on a working Visa and notes that apparently the victim wants to reconcile with the appellant.  Having regard to all of these matters, he sets a starting point of 12 months and applies a 25% deduction for a guilty plea, with the resulting sentence of nine months imprisonment for his overall offending.   A protection order was also granted pursuant to s 123(b) Sentencing Act 2002.

Respondent’s position

[7]      Mr Donnelly submits that having regard to the totality of the offending, a nine   months   imprisonment   sentence   is   plainly   not   manifestly   excessive. Mr Donnelly relies on various authorities, including Bonfert v R.[1]     In Bonfert, an appellant, also  from  overseas,  was  found  guilty of two  counts of male assaults female, assault with a weapon and threatening to kill.  The offending involved verbal abuse, pushing and sitting on the victim and threatening to punch her.  The appellant also put his hands around the complainant’s neck and applied pressure.  Mr Donnelly noted that in that case the Court of Appeal overturned a sentence of 23 months and

replaced it with sentences of 16 months for threatening to kill, six months for two

counts of male assaults female and three months for assault with a weapon.

[1] Bonfert v R [2012] NZCA 313.

[8]      Mr Donnelly also helpfully refers to the cases of T v New Zealand Police; Mann v Police, Martin v Police and O’Connor v Police.[2]    In T, the appellate Court allowed an appeal and reduced the sentence to 16 months imprisonment for wilful damage, common assault, threatening to kill, male assaults female, four charges of contravention of a protection order, two charges of failing to answer bail and breach of  community  work.    In  Mann,  a  sentence  of  nine  months  imprisonment  was

imposed for assault with a weapon, threatening to kill, male assaults female and breach of a protection order.   In Martin, a sentence of eight months imprisonment was substituted on appeal for a sentence of six months imprisonment involving a domestic situation which resulted in minor bruising.   There is then the case of O’Connor v Police, where a sentence of two years six months imprisonment was imposed in relation to breach of a protection order, damage to property, pinning down and smothering the victim and the statement by the appellant that he was going to kill her.

More case law

[2] T v Police HC Gisborne CRI 2011-416-000015, 9 June 2011;  Mann v Police HC Invercargill

CRI 2005-425-14 & 15, 19 August 2005; Martin v Police HC Rotorua CRI 2007-470-24, 11 July

2007; and O’Connor v Police HC Wellington CRI 2008-485-13, 17 April 2008.

[9]      At the conclusion of what was then the first tranche of argument, I invited counsel to provide further research on cases dealing with domestic violence. I specifically invited the defendant’s counsel to examine whether or not there were cases which showed that the sentence in this case was demonstrably excessive.

[10]     In the short time available to him, Mr Fraser helpfully brought several cases to my attention.[3]   Two cases in particular were highlighted, namely Sandri v Police and  Saengcharoenkun  v  Police.[4]      In  Sandri,  a  sentence  of  six  months  home detention was imposed on three charges of male assaults female and two of common

[3] Denovan v Police HC Christchurch CRI 2010-409-000063 & 64, 20 May 2010; Jensen v Police

HC Auckland A39/03, 2 May 2003;  Police v Faulkner DC Tauranga, CRI 2009-070-000916,

16 April 2009;   R v Cameron DC Ashburton CRI 2009-076-000577, 2 June 2009;   Sandri v Police  HC  Timaru  CRI  2009-476-000011, 28  July  2009;    Saengcharoenkun v  Police  HC Dunedin AP17/01, 27 June 2001; R v Ogaz [2007] NZCA 45; R v Chan [2009] NZCA 528; R v Gui HC Auckland CRI 2011-404-000267, 22 November 2011; Ayala v R [2012] NZCA 271;

[4] Sandri v Police above n3; Saengcharoenkun v Police, above n3.

assault.  As a result of these assaults, the complainant suffered a small abrasion to

her left forearm and very sore, tender ribs.  There was also provocation in that case. In Saengcharoenkun, the accused’s sentence was nine months imprisonment suspended on appeal given the likelihood of deportation.

Assessment

[11]     I commence my assessment by reminding myself that I may only allow the appeal if I consider the sentence to be manifestly excessive.

[12]     Mr Fraser quite properly did not challenge the canvas of the law provided by the Crown. An evident theme in those cases is that the type of offending in this case will usually attract a sentence of imprisonment in the range of nine months to two years.   There  are  cases  where  the  sentence  has  been  less  and  cases  where  the sentence  has  been  more.    But  in  the  generality  of  cases,  I  do  not  accept  the appellant’s  contention  that  the  sentence  here  of  nine  months  was  manifestly excessive.   The aggravating features of physical violence and threats of violence with a weapon combine to implore a contrary conclusion, namely if anything, the sentence was at the bottom end of the scale.

[13]     I have noted the relevant alleged errors said to infect the District Court’s

reasoning.  I can deal with them succinctly.

[14]     Reference by the District Court Judge to the victim’s Sri Lankan heritage was entirely appropriate, highlighting her vulnerability.  A finding of a lack of remorse was available to the Judge.  The appellant’s previously good character is not a matter of great moment in the context of the present offending and not a basis for a further material deduction in sentence.

[15]     It is true that the Judge says that the impact of the offending on the victim “does not appear to be major” while at the same time concluding that the offending is “an alarming saga”.  I consider these two comments can be reconciled.  The Judge found it alarming that the victim would be placed in an isolated position and left to accept guilt, as if it was her fault.  While this self purporting may suggest that the impact is low, objectively assessed, the impact is significant, as the Judge suggests.

[16]     I see nothing at all in the Judge’s reference to deportation and again, whether it is relevant or not, it would only have a minor impact on sentence.   I do not understand the appellant’s submission in relation to the prospect of reconciliation.  If Mr Fraser is suggesting that the Judge did not take this into account, the Judge had a proper basis for doing so.  The view that he formed that it was necessary to impose a protection order for the protection of the victim was also reasonable.

[17]     I accept that the Judge did not have regard to home detention.  Plainly, given his  assessment  of  risk  to  the  victim  and  his  assessment  of  the  gravity  of  the offending, with which I do not disagree, the lack of consideration given to home detention was not unreasonable in the circumstances.

[18]     Finally, there is the reference to the defendant’s age.   I do not accept the Crown’s position that 26 means an age beyond which the consideration of youth applies.  Context is everything and in this context, the accused is a relatively young man of foreign nationality.   His vulnerability in these circumstances is a relevant consideration.   But even if I take that into account, I do not see a nine month sentence of imprisonment as disproportionate.

[19]     Given the foregoing, I am not prepared to grant the appeal.  The sentence in all of the circumstances was not manifestly excessive.

Solicitors:

John K Fraser, Invercargill

Preston Russell Law, Invercargill