R v H HC Palmerston North CRI 2009-054-2568

[2010] NZHC 107

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-054-2568

CRI 2009-054-2569

THE QUEEN

v

H

HA

Hearing:         16 February 2010

Counsel:         P Murray and S Johnston for Crown

J A Younger for H 
J G Turnbull for HA 

Sentence:       16 February 2010

SENTENCE OF RONALD YOUNG J

[1]      Mr H   and Mr HA   you are both for sentence today together on the charge of assault with intent to injure.  You, Mr HA  , on a charge of assault with a weapon  and  cultivating  cannabis.     The  assault  charges  all  arise  from  your relationship with one complainant.  You all apparently lived close together near the Pahiatua area.

[2]      The assault with a weapon occurred when the complainant came to your house, Mr HA  .  An argument developed.  The complainant was asked to leave the address.  As he did so, you Mr HA  , struck him across the back with a golf

club.  Although the complainant felt the strike there was no injury.

R V H AND ANOR HC PMN CRI 2009-054-2568  16 February 2010

[3]      As far as the continuation of that incident was concerned, later that evening the complainant returned to your address with two associates angry that he had been hit  with  the  golf  club.    At  that  stage  there  was  a  heated  exchange  and  the complainant grabbed an iron bar from a vehicle.   As he did so you, Mr H  , struck him on the jaw once knocking him to the ground.  He was unconscious for a short while.   He suffered a split lip but no medical attention was required.   No charges arise from this incident as far as the two of you are concerned because the Crown correctly accept that what you did, Mr H  , was in self defence.  The victim was rightly charged arising from his threats with the iron bar and he pleaded guilty to that.

[4]      However, on the next day, 3 February, the complainant was riding a farm bike.  As he pulled into a work mates address the two of you saw him.  You were driving by in a motor vehicle.   You slowed and as you did so you, Mr HA  , grabbed  the  complainant  around  the  neck,  pulled  him  off  the  bike,  you  then proceeded to punch him around the head and body.  You, Mr H  , jumped out of the vehicle, picked up a puppy from the bike and threw it over the fence.  You then joined Mr HA   in attacking the complainant.

[5]      At this stage it is said that you, Mr H   and you Mr HA  , also kicked and jumped on the complainant.  That allegation was the subject of a defended facts hearing.  I heard evidence on that disputed facts hearing related really to the question of whether the two of you had kicked and jumped on the complainant as I have said.

[6]      I am satisfied beyond reasonable doubt that you did so.  I found overall the evidence of Mr Dewar and Mr Foote credible.   I doubt that Mr Dewar’s evidence that he was kicked at least twenty or more times was however accurate.  I think his evidence as to this was somewhat exaggerated.  It is of course impossible to know now how many times each of you kicked him but I am satisfied either you held the complainant or kicked him and that that applies to the both of you.

[7]      For sentencing purposes it is unnecessary for me to distinguish between you. As to the jumping I am satisfied that you, Mr H  , did jump at least once on the

victim.   However, having heard the evidence I am satisfied that you, Mr HA  , were the most violent of the two of you and you began the assault.

[8]      Given the victim’s injuries it seems to me unlikely any of the kicks were to his face or if they were they were not violent kicks.   It would be understandable given the victim’s recollection that he could have confused at times punching and kicking.  But I accept overall his evidence that he was punched and kicked all over his body that I accept not kicked to the head or jumped on on the head.

[9]      During the course of these events the victim was of course trying to get you to stop the assault.  A workmate came out of the house and approached the two of you obviously trying to get you to stop.   You, Mr H  , jumped the fence to confront him in an aggressive way.  The workmate then ran off to his employer’s address six hundred metres away to raise the alarm.   Eventually you stopped the assault when your realised the police had been called.

[10]     An  ambulance  was  then  called  for  the  complainant.    He  was  taken  to Hospital.  He had cuts and scrapes to his right eyebrow and eye socket, reopening of the cut to his mouth that he had received the night before; he had severe bruising to his ribs and hip and generally to his torso.

[11]     Later after your arrest the police went back to your address, Mr HA  , with a warrant to seize your vehicle and clothing.  While there they found 108 cannabis plants growing inside and outside the address.   Some of the cannabis plants were inside a shed with a heating shield on the walls, plants under lights and growing in potting mix.  Some plants that were growing outdoors were staked to grow along the ground and were concealed by other plants.  You pleaded guilty to this cultivation, Mr HA  .

[12]     You are, Mr HA  , thirty-nine years of age and have a serious history of violent offending and some of drugs.  In 2006 you were imprisoned for five months for assault with intent to injure.  In 1999 you were imprisoned for two years and six months for wounding with intent to injure and you have convictions for possession of cannabis in 1992, 1991 and 1988.

[13]     Mr H  , you were then, only seventeen years of age, now eighteen years of age and have no previous convictions.

[14]     As far as the pre-sentence report is concerned with you, Mr HA  , it records you have got a number of now almost adult children and have worked as a farm worker and a shearer.

[15]     In the probation report, Mr HA  , you minimise your offending both for the violence and cultivation of cannabis.  The probation officer records that you are of low motivation to address the factors that contribute to your offending which is obviously a propensity for violence and drug and alcohol use.

[16]     As far as you are concerned, Mr H  , as I have said the probation officer observes that you have a good relationship within your family.  You apparently did well at school, you were active in sports and you have aspirations to complete a civil engineering  apprenticeship.    You  are  said  to  be  a  keen  worker  and  currently employed casually.

[17]     But again the probation officer reports that you have limited remorse and a limited willingness to make amends.  However you accept the inappropriateness of reacting in this violent way.  You are said to be remorseful.

[18]     I have read a victim impact report with respect to Mr Dewar.  He describes how frankly he cannot really understand what the difficulty was right from the beginning of the incident.  He felt that after the incident finished on Monday night and he had been knocked out that that should have been the end of it.

[19]     He has had extremely sore head, ribs and legs.   He thought, although they weren’t, that some of his ribs were broken.  As a result of the assault and the whole incident he has now been fired from his employment.

[20]     The Crown say that the aggravating features here are that actual violence, the punching, the kicking and the jumping on the victim and the attack on the victim while he was on the ground.  They point that there were two offenders and a lone

victim.   They emphasise, Mr HA  , your assault the day before and the fact that you only stopped because you thought the police were going to arrive.  They say an appropriate starting point is two years’ imprisonment with a cumulative sentence for you, Mr HA  , for the other charges.

[21]     As far as you, Mr H   are concerned, they also accept that there should be  some  mitigation  for  your  age  and  lack  of  previous  convictions.    For  you, Mr HA  , they say there should be cumulative sentences given the facts of the case and given your bad history.

[22]     They say in addition therefore to the proper starting point of two years for the assault there should be an additional sentence to two to 2½ years for the cannabis offending.

[23]     I record, Mr H  , that your counsel submits it is an appropriate case for something less than imprisonment.   She stresses that your age, your co-operation with the police, your remorse, your good work record and says that a sentence of imprisonment is not required but a community based sentence should be imposed.

[24]     Mr HA  , for you your counsel has stressed that you should be given some credit for your guilty plea.  That you are addicted to cannabis and really all of the offending arises from this, both your cultivation and offending.  The contrasts your case with others where there was more serious offending.  He says that concurrent sentences could be imposed but if there are cumulative sentences for the assault and cannabis offending then a sentence of no more than three years should be imposed.

[25]     I want to make firstly some general remarks about these events.  Whatever the position as far as the previous night is concerned, and I accept that the victim acted foolishly and aggressively, the matter was finished that night.  There was no justification whatsoever for either of you to seek the victim out the next day.  This was a serious assault.   If, as you claim, both of you were so concerned about the alleged threats then the proper course was a complaint to the police.  What was not acceptable was for the two of you to take the law into your own hands.

[26]     Firstly,  the  seriousness  was  because  two  of  you  assaulted  him.    When someone else tried to intervene you threatened that person and they left.  You were both prepared to punch and kick this man.  As I have said it was a violent cowardly attack on a young man who was considerably smaller than the two of you and considerably younger than you, Mr HA  , an adult.  He was sufficiently seriously injured to go to hospital although I acknowledge not admitted.   He had extensive bruising.

[27]     Based  on  Court  of  Appeal  authority  taking  account  of  the  aggravating features I think a proper starting point is eighteen months’ imprisonment as far as the facts were concerned.

[28]     Turning therefore solely to you, Mr H  , you have had a crime free past until now.   As I have recorded you are eighteen years of age.   I accept that there would have been an element of control and perhaps bravado given these events involved your father.   But you have to have sufficient courage to make your own decision.  He has a bad record of violent offending and if you want to go to prison you just follow his example because if you do that is where you will be going. Whatever the rights and wrongs of the previous day’s violence, violence can never play a part in your response.   You have now got a conviction for a very serious crime. You had no right to take the law into your own hands.

[29]     I have seriously considered simply sending you to prison to make it clear that this action is unacceptable.  But I have decided there is enough good in you to risk a sentence of home detention and to give you a chance.  But you must understand it is a very fine judgment and I am giving you the chance.  If you carry on the way you have on this occasion then the next time will be a lengthy sentence of imprisonment. You are at the cross roads, you can choose to live a good and productive life or you can choose the path of your father and go to prison.  I will announce your formal sentence at the end.

[30]     You, Mr HA  , of course are in a completely different position.  Firstly, you were the older and mature adult and could have stopped these events at any time. Instead you encouraged the events.  You dragged your son into criminal offending

when he had no offences.  It should be to your deep shame that you have done that. You have previous offences for violence and you have apparently learnt nothing from those previous offending.  The violent offending is relatively recent in 2006. The start sentence for you of eighteen months’ imprisonment is uplifted by four months for your previous offending.

[31]     As far as the cultivation of cannabis is concerned you are clearly in the second  category of  R  v  Terewi  [1999] 3 NZLR 62. There is no way that 108 cannabis plants can be solely for your own use even accepting that some were small and outside. I accept, however, that you were at the bottom end of this category.

[32]     In addition, as an aggravating feature, was the assault on the previous day. There is no question but that the cannabis offending which is different in time and type to the violent offending must be cumulative.

[33]     As to any discount for your guilty plea, as far as both of you are concerned, I accept that without the defended facts hearing a discount of 25% would have been appropriate.  However, you chose unsuccessfully to challenge what was an essential part of this allegation, the kicking.  Of course, you were entitled to challenge it but having unsuccessfully challenge it you must accept the consequences of your action, the result is a substantial reduction on that.

[34]     I am prepared to give a very modest discount to you, Mr HA  , for your guilty  plea  of  three  months’  imprisonment.    Your  discount  will  be  built  in, Mr H  , to the home detention sentence.

[35]     I consider, however, overall a total sentence of three years and nine months for you Mr HA   is simply too long to reflect the overall criminal offending.   I think a sentence of three years’ imprisonment adequately reflects the overall criminality of what you did.

[36]     And so I impose the sentences in this way:

a)       on the assault with intent to injure you are sentenced to eighteen months’ imprisonment;

b)on  the  cannabis  cultivation  eighteen  months’  imprisonment cumulative;

c)        on the assault with a weapon six months concurrent.

[37]     Mr H   for you I sentence you to six months’ home detention with the special conditions as follows:

a)       upon receiving the sentence you will go directly from the Palmerston North District Court to 65 Cooke Street, Foxton and await the arrival of a probation officer;

b)secondly,  you  will  reside  at  that  address  for  the  duration  of  the sentence and not move without prior approval of the probation officer;

c)       you will remain within the electronic boundary of that address at all times  unless  your  absence  has  been  authorised  by  the  probation officer;

d)       you will abstain from alcohol or illicit drugs during home detention;

e)       you will complete an alcohol and drug assessment and counselling as directed;

f)        you  will  complete  an  angry  management  assessment,  counselling

programme to the satisfaction of the probation officer.

Ronald Young J

Solicitors:

P Murray, Ben Vanderkolk & Associates, PO Box 31, Palmerston North, email: [email protected]

J A Younger, Barrister, Palmerston North, email: [email protected]

J G Turnbull, Barrister, Palmerston North, email:  [email protected]