R v Michelle

[2016] NZHC 9456

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT DUNEDIN

CRI-2015-012-001695 [2016] NZDC 9456

THE QUEEN

v

SHAYNE LYALL MICHELLE

Hearing:	25 May 2016
Appearances:	M Grills for the Crown S Turner for the Defendant
Judgment:	25 May 2016

NOTES OF JUDGE K J PHILLIPS ON SENTENCING

[1]      Mr  Michelle  you  are  before  me  for  sentence,  you  having  accepted  a sentencing indication I gave you back in November 2015 by your pleas of guilty that were entered in April of this year.   You are for sentence in relation to charges of injuring  with  intent  to  injure;  threatening  to  kill;  two  charges  of  injuring  with reckless disregard; and a charge of aggravated driving while disqualified.  I am also, as I have pointed out to you, dealing with some $13,387.89 in fines.

[2]      The first charge of injuring by an unlawful act was on 16 August 2014.  Your ex-partner was 28 years of age.  She was three months pregnant.  You came home from work and got angry with her, grabbing her by the scarf and clothing, pulling her to the floor, dragging her around by the hood of her sweatshirt, the scarf and her hair. She was being slowly strangled when this was happening, she having difficulty in breathing.  She manages to get herself free and away from you.  She suffered marks

on her throat and a sore throat.

R v MICHELLE [2016] NZDC 9456 [25 May 2016]

[3]      This  relationship  had  been  carrying  on  for  some  18  months  ending  in July 2015.  Beginning in early 2014 you living with your parents.  She had moved by Christmas 2014 to Dunedin. You followed her from your parents’ home to Dunedin.

[4]      The issues from 16 August just continued in Dunedin.  Christmas Eve 2014, she was at the address with a member of your family, six months pregnant by this stage.   You had been out drinking and came home drunk.   You treated her with contempt when you did arrive.  You were angry, tipped a full bottle of beer over her, and told her to clear it up.  As I said in the indication, “as if she was your household slave.”  You told her to get off the floor.  As she was doing that, you spat in her face. She left the address.   You caught up  with her,  you driving in  your  intoxicated condition, told her to “get in” (in no uncertain terms).  She was upset, isolated and frightened.  She did so. You drove to a nearby river making threats to her, telling her on Christmas Eve she was not going to see Christmas morning, that she would not see her daughter again and you were going to take her somewhere to do what you should have done earlier.  You produced a machete when talking in that way.  She was begging you not to kill her, reminding you that she was pregnant.

[5]      In  July  2015,  you  were  at  home  in  [location  deleted].    There  was  an argument. You said you were going to leave.  The twins had been born by this stage. You followed her, punched her in the face (sufficient force to knock her backwards across the room) she suffering a swollen shut eye and significant bruising.  A further argument in July, angry again.  The best method was to retreat, she thought, and she went outside.  You followed.  The argument continued.  You purposely pushed her with both hands on her chest, knocking her from the top of the step, over and onto a concrete path.  She landed on her elbow which was broken as a result.  Her arm was broken also.  She had to go to hospital.

[6]      You arrived at the house, two/three days later saying you were going to take the babies. Angry, extremely rude, and she could not stop you. You put “her babies” in  the car and  drove off.   You  were stopped  by the police.   Your licence was suspended at the time you were driving.

[7]      In my sentencing indication which is to be attached to these sentencing notes and after hearing from your then counsel, Ms Garthwaite, and looking at all matters, noting and discussing, that I must hold you accountable; to deter and denounce domestic violence; and provide for the interests of the victim of the event.  I noted that she was particularly vulnerable because of her pregnancy.   On the charge of injuring with intent, she was in a room with the babies and received a punch to the face.  She was then pushed and she suffered a broken elbow and arm. The issues that I saw that were aggravating were her vulnerability, the serious injuries and attacking her head.  Overall I considered, therefore, as a total starting point for your offending, in my view, was of three years.  I uplifted it because of your prior actions, but I was dealing with offending of violent offending only in doing so.   I indicated that the starting point would be three years and three months.  I allowed five percent for your remorse which I considered to be very basic.  The guilty plea.  You did not have any defence anyway but the Crown accepted you are entitled to a guilty plea credit. Overall I took 12 months off my starting point for an end point of two years and three months. You did not accept that indication.

[8]      However, on 2 May you were then also on a charge on injuring with intent to injure between 15 June and 6 July 2015.  That was brought down to injuring by an unlawful act from a five year maximum to a three year maximum.  I said that the starting point would remain at three years and three months.   I will allow five percent credit for remorse and stopping violence, ten percent for an extreme late guilty plea, the end being two  years and 11  months.   In the end there was an acceptance that it would be two years and three months.

[9]      I have said to you this morning, or this afternoon, that I intend to deal with fines.   I indicated to Mr Turner, your counsel that would cause an uplift of some two months.  I perhaps put that wrongly.  I intend to remit $13,387.89 in fines and in lieu I am sentencing you to two months.  Overall I am only raising the total sentence taking into account all issues of totality by one month.  The end sentence that I am going to impose upon you is a sentence of two years and four months.  I note that the Crown would be suggesting I should make an emotional harm reparation order.   I consider that taking into account your circumstances it would be an entire waste of time because you do not have any assets or income or ability to pay.  I apologise to a

very brave victim who read the statement to you herself this afternoon but I cannot make orders that are empty orders.  I hope she understands that.

[10]     I note the pre-sentence report and the matters that are contained within it.  I take those into account.  You are sentenced in this way.  On the head or lead charge for  the  purposes  of  sentencing,  charging  document  2248,  with  intent  to  injure, injuring the named  complainant,  you  are sent  to prison for two  years and four months.  On the charge of threatening to kill on 24 December; the same complainant, you are sent to prison for a term of one year.   On the charge of injuring by an unlawful act in relation to the events in August in Ashburton, you are sent to prison for one year.  On the charge relating to Dunedin in June/July of 2015, injuring by an unlawful act, you are sent to prison for one year.  On the charge of driving whilst disqualified laid in its aggravated form, you are sentenced to imprisonment on that charge for a term of two months.  You are disqualified from holding or obtaining a driver’s licence for one year and two months as from today.

[11]     The terms of prison that I have mentioned on the other charges are run concurrently with the two years and four months.

[12]     The   fines    are   remitted    of    $13,387.89.      You    are    sentenced    to two months’ imprisonment to run concurrently with the two years and four months which is the end sentence.

K J Phillips

District Court Judge