R v S

Case [2024] NZHC 197 16 February 2024

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INTERIM ORDER SUPPRESSING NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS AND CONNECTED PERSONS UNDER S 286 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-004-2642

[2024] NZHC 197

THE KING

v

S and G

Hearing: 16 February 2024

Appearances:

C Paterson and J Ah Koy for the Crown K-A Kincade KC and A Shendi for S

P L Borich KC for G

Sentencing:

16 February 2024

SENTENCE OF GAULT J

Solicitors / Counsel:
Ms C Paterson and Ms J Ah Koy, Meredith Connell, Office of the Crown Solicitor, Auckland Ms J-A Kincade KC and Ms A Shendi, Barristers, Auckland
Mr P L Borich KC, Barrister, Auckland
Ms H Croucher, Public Defence Service, Manukau

R v S and G [2024] NZHC 197 [16 February 2024]

[1] Ms S and Mr G, you both appear for sentencing today following your jury trial in October.

[2] Ms S, shortly before trial you pleaded guilty to a charge of assault with intent to injure.1 At the beginning of trial, you pleaded guilty to two further charges of assault with intent to injure and three charge of common assault.2 You were found guilty by the jury of manslaughter by assault.3

[3] Mr G, at the beginning of trial you pleaded guilty to one charge of common assault. You were found guilty by the jury of manslaughter by dangerous driving and of failing to stop to ascertain injury.4

[4] I will begin by setting out the facts of your offending,5 before explaining the approach I am required to take in sentencing.

Facts

[5] Ms S, on Thursday 21 April 2022 at approximately 2:00 am, inside Saturdays bar in Britomart, you saw Ms Olson, called her names, poured your drink over her head, grabbed her drink and poured that over her head and then threw multiple punches at her body and kicked her leg before security intervened. This was the first assault with intent to injure.

[6] The following Saturday evening, you, Mr G and some friends spent time at your flat in Ponsonby before Mr G drove you and three friends into town in his Hilux Surf at about 12:30 am on Sunday 24 April 2022. You again went to Saturdays bar. Ms Olson was there again too. At around 2:00 am, you approached her from behind,

1      Crimes Act 1961, s 193. The maximum penalty is three years’ imprisonment.
2      Crimes Act 1961, s 196. The maximum penalty is one year’s imprisonment.
3      Crimes Act 1961, ss 171, 160(2)(a), 177 and 66. The maximum penalty is life imprisonment.
4      Land Transport Act 1988, ss 22(1), 36(1)(c) and 36(2). The maximum penalty is imprisonment for a term not exceeding five years or a fine not exceeding $20,000; and the court must order disqualification from holding or obtaining a driver licence for 1 year or more.
5      I must sentence you on the basis of the proved facts implied in the jury’s…

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 R v S

Details

AGLC: R v S [2024] NZHC 197
Case: [2024] NZHC 197
Decision Date: 16 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Gault J sentenced S and G following their convictions for manslaughter and related offences. The key issue was to determine appropriate sentences considering the nature of the offending, the culpability of the defendants, and relevant mitigating factors. Gault J set starting points for each defendant's overall offending and adjusted these based on aggravating and mitigating factors.

For G, the starting point was four and a half years' imprisonment, reflecting his culpability in the dangerous driving and failure to stop. Gault J applied discounts for G's youth, previous good character, remorse, and rehabilitative prospects, resulting in an end sentence of two and a half years' imprisonment, to be served concurrently.

For S, the starting point was three years and nine months' imprisonment, reflecting her culpability in the manslaughter by assault and additional assaults. Gault J applied discounts for S's youth, previous good character, rehabilitative prospects, and psychological needs, resulting in an end sentence of two years and two months' imprisonment, to be served concurrently.

The final orders were that G was sentenced to two and a half years' imprisonment on the manslaughter charge, three months' imprisonment on the assault charge, and six months' imprisonment on the failing to stop charge, with disqualification from driving for two years. S was sentenced to two years and two months' imprisonment on the manslaughter charge, nine months' imprisonment on the assault with intent to injure charges, and three months' imprisonment on the assault charges.

Orders