IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2013-416-10 [2013] NZHC 2757
BETWEEN DESMOND PENROSE Appellant
ANDPOLICE Respondent
Hearing: 18 October 2013
At Wellington (via AVL)
Counsel: Appellant in Person
K Laurenson for Respondent
Judgment: 22 October 2013
JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction and sentence)
[1] Desmond Penrose appeals his summary conviction on charges of male assaults female1 and speaking threateningly.2 He appeals on the notified ground that the convictions were contrary to preponderance of the evidence. He appeals also the sentence imposed of 150 hours community work.
Appeal against conviction
Evidence
[2] It all happened on a Saturday morning, on 6 April 2013. The complainant is the appellant’s girlfriend. The appellant picked her up from work the night before. They drove home together. Two friends, Mr and Mrs O’Donnell, came over for dinner and stayed the night. The O’Donnells’ young children were there too, but
went to bed early.
1 Crimes Act 1961, s 194(b).
2 Summary Offences Act 1981, s 21(1)(a).
PENROSE v POLICE [2013] NZHC 2757 [22 October 2013]
[3] The appellant and complainant had been having some relationship difficulties. The complainant acknowledges that she became drunk over the course of the evening, difficult and provocative.
[4] In the early hours of Saturday morning, when everyone had gone to bed, the complainant confronted the appellant about something she had found on his laptop. She asked him to leave. He said he would do so in the morning once he had packed up his camera equipment and luggage.
[5] Come dawn that morning the bickering continued. The O’Donnells were still present. The appellant went outside and smashed some bottles of spirits on the patio, saying the complainant had a drinking problem. There was an argument about the complainant supposedly hiding the appellant’s cigarettes.
[6] At this point he took the complainant by the throat and said “Watch yourself, you don’t want to mess with me, I could snap your neck”. The appellant does not deny making that statement. But he says they were terms of endearment: he was suddenly taken by the beautiful slenderness of her neck.
[7] The complainant for her part saw no endearments. In evidence she said she
was “pretty well” frightened by these actions.
[8] The appellant admits that he stopped the complainant walking towards him by applying force to the area beneath her chin. He admits that he held her for 20 seconds and that he closed his hand around her throat. He says that he did not squeeze it. But he admits that her face became red. He did not concede that he forced her onto her toes or that her eyes were bulging.
[9] But the O’Donnells, who gave evidence, say that is exactly what happened. Mrs O’Donnell gave evidence that the appellant had the complainant by the neck for
20 to 30 seconds. She was “on her tippy toes”, looked “terrified”, her eyes were getting bulgy and her face was red. Mrs O’Donnell rang…
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- Case
- [2013] NZHC 2757
- Decision Date
CaseChat Overview and Summary
The court dismissed the appeal against conviction, finding that the evidence was sufficient to constitute all the necessary elements of each offence. The court found that the appellant's explanation for his actions was ludicrous and that there was no reversible error by the judge in assessing the evidence. The court also dismissed the appeal against sentence, finding that the sentence was not excessive and was within the range of penalties available.
The court found that the appellant's complaints about the process issues advanced were unfounded. The court found that the appellant had not laid a foundation to conclude that there was any material omission in the record available. The court also found that the appellant had made an informed choice to proceed with the trial despite repeated invitations by the judge not to proceed that day. The court found that the judge dealt with the trial in a patient and reasonable manner and that the allegation of bias could not be sustained.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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