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Police v Dsouza

Police v Dsouza

Case [2018] NZHC 1317 6 June 2018

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-8

[2018] NZHC 1317

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

WILFRED LAWRENCE DSOUZA

Respondent

Hearing: 29 May 2018

Counsel:

S J Simpkin for Appellant M S Boyd for Respondent

Judgment:

6 June 2018

JUDGMENT OF THOMAS J

[1] In April 2017, the appellant, Wilfred DSouza, assaulted his wife using an electrical cord as a weapon.1 Almost a year later, following significant counselling (both alone and with his wife), restorative justice and with his wife’s support, Mr Dsouza was discharged without conviction.2 The police now apply for leave to appeal that decision.

Factual background

[2] At about 7 pm on 19 April 2017, Mr DSouza arrived home after fishing and drinking with friends to find Mrs DSouza had locked her bedroom door following her night shift, working as a nurse. Mr DSouza banged on the door and broke the lock. He snapped his glasses and held the lens to his stomach, threatening to harm himself and to tell the police she had stabbed him. She told him to leave and said he was

1 Crimes Act 1961, s 202C, maximum sentence five years’ imprisonment.
2 Police v DSouza [2018] NZDC 4554.

POLICE v DSOUZA [2018] NZHC 1317 [6 June 2018]

“zero”, meaning he contributed nothing to her life. He began hitting her with his open hand. The summary of facts states he picked up an ironing board and attempted to hit her with it but there is some dispute about whether this happened or not. Mr DSouza picked up an electrical extension cord and began repeatedly hitting Mrs DSouza with it, primarily making contact with her legs and hands. He threatened her with the plug end and tried but failed to hit her with it. Mrs DSouza attempted to protect herself by wrapping up in a blanket. She called a friend for help. The summary of facts states Mr DSouza threatened to plug in an iron and burn her with it but she managed to unplug it. This is also disputed. Mr DSouza continued to hit Mrs DSouza until the friend arrived and stopped him.

[3] Mrs DSouza received a number of serious welts and bruises to her legs. In her victim impact statement, she said she felt anxious and depressed and suffered low self- esteem because of the way her husband treated her. She said she initially did not want to be with him after the assault but has since changed her position. He is, she says, a wonderful person who is involved with the church and a good father to their child. Without his help, she struggles to care for their child.

[4] Mr and Mrs Dsouza separated for a period after the assault. During this time, Mr DSouza held prayer and meditation sessions with a local priest and with a priest in Opunake. He has since had family counselling in India with members of his and Mrs DSouza’s families. He…

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 Police v Dsouza

Details

AGLC: Police v Dsouza [2018] NZHC 1317
Case: [2018] NZHC 1317
Decision Date: 6 June 2018

CaseChat Overview and Summary

The New Zealand Police sought leave to appeal against the decision of the District Court Judge to discharge Wilfred Dsouza without conviction for an assault committed against his wife. The High Court was required to decide whether the District Court Judge erred in his assessment of the gravity of the offending, failed to have regard to the general principle that a sentencing Judge ought not to usurp the function of the immigration authorities, erred in finding the consequences of a conviction would be out of all proportion to the gravity of the offending, and erred in failing to recognise the existence of a discretion under s 106 of the Sentencing Act 2002, even where the s 107 test is met. The Court found that the District Court Judge did not err in his assessment of the gravity of the offending, failed to have regard to the general principle that a sentencing Judge ought not to usurp the function of the immigration authorities, erred in finding the consequences of a conviction would be out of all proportion to the gravity of the offending, or fail to recognise the existence of a discretion under s 106 of the Sentencing Act 2002, even where the s 107 test is met. Therefore, the Court refused leave to appeal and dismissed the appeal.

Orders