R v Whitehead HC Whangarei CRI 2007-088-004116

[2008] NZHC 2514

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-088-004116

THE QUEEN

v

RUSSELL EARLE WHITEHEAD

Charge:          Assault with intent to facilitate the commission of a crime

Plea:               Guilty

Appearances: Michael Smith for Crown

Arthur Fairley for Prisoner

Sentenced:     20 August 2008

3 months home detention; 100 hours community work

SENTENCING NOTES OF HARRISON J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

Thomson Wilson (Whangarei) for Prisoner

R V WHITEHEAD HC WHA CRI 2007-088-004116  20 August 2008

Introduction

[1]      Mr Whitehead, you appear for sentence today having pleaded guilty to one charge of assault with intent to facilitate the commission of a crime.  The maximum sentence that can be imposed for that offence is five years imprisonment.

[2]      I have had the benefit of submissions from Mr Smith and from Mr Fairley.  I

have also read the probation report.

Facts

[3]      I must first deal briefly with the facts.

[4]      On 21 September 2007  you and  a  young woman were  at  your  home  in Whangarei.  The two of you had shared a taxi ride to your house.  She intended to walk home.  At one stage the two of you were in your garage.  She was on the point of leaving when you placed your arm in a position which was designed to prevent her from going.  She became scared.  She ran around a vehicle.  You blocked her exit.  You grabbed her around the waist with one hand.  You put your other hand over her mouth.   You told her to  calm  down  and  keep  quiet  because she  was screaming.  She then dropped to the ground and was able to break free.  She escaped through a small opening in the garage.  She then fled to a neighbour’s house where she alerted the police.  In escaping the young woman received superficial cuts to her nose.

[5]      On this basis you were charged with the offences of injuring with intent to facilitate  the  commission  of  a  crime  or  in  the  alternative  with  assault  for  that purpose.  I am in no doubt that the more serious charge of injuring could never have been sustained.  You have entered a plea of guilty to the assault quite properly.

[6]      I take into account that both you and the young woman were influenced by alcohol.  You say, though, that the effects of drinking earlier in the day had worn off. I doubt it.

[7]      The effect on your victim was serious.  She was plainly traumatised by the event.  Both of you are fortunate that she was able to leave when she did and that events did not go further.  Otherwise, Mr Whitehead, you would be facing a much more serious charge today.

Starting Point

[8]      Against those facts I must set the starting point for your sentence.   The starting point is the term of imprisonment which is appropriate for the circumstances of the offending.

[9]      Taking all factors into account, including the effect on your victim but the absence of any real injury to her, I fix the starting point appropriately at six months imprisonment.

Personal Circumstances

[10]     Against that I must take into account your personal circumstances.  You have entered  a  plea  of  guilty.    You  are  38 years  of  age.    You  had  until  recently  a reasonable history of compliance with the law.  Your previous offending, disturbing as it was, related principally to driving offences.  However, in more recent years you have committed two serious offences.  You do not need me to say that if this pattern of misconduct continues you will inevitably face serious charges and be sentenced to a term of imprisonment.  The future is in your hands.

[11]     What encourages me, Mr Whitehead, is the contact you have recently made with the organisation called Men Against Violence.  That is a very positive factor. You   should   use   that   opportunity   and   participate   in   whatever   rehabilitative programme you can.  I understand, as Mr Fairley has sensitively noted this morning, that you may have suffered violence in your own childhood.  It is to your credit that you are still prepared to assist your father.  Be that as it may, you must take whatever steps are available to you now to deal with those sorts of demons.

[12]     Allowing appropriately for these factors, the starting point should be reduced to four months imprisonment.

[13]     I am satisfied that I should impose a sentence of home detention instead of imprisonment.   There is a suitable address for you to live at – 25 Waipapa Road, Pipiwai.  Home detention is not a soft option.  It is a real restriction on your liberty. However, in consultation with the probation officer you should be able to relax the terms to enable you to take employment between defined hours.

[14]     I sentence you to a term of three months home detention on the conditions set out  in  the  probation  officer’s  report,  subject  to  these  amendments.    First,  the proposed prohibition against consumption of alcohol or drugs is deleted.   In other words, you are free to consume alcohol but you will have to work out for yourself the parameters of its use.  Consumption of drugs is a criminal offence and I do not need to impose a condition against it.

[15]     Additionally I sentence you to a term of 100 hours of community work to be implemented by the probation service.

[16]     Mr Whitehead, the future is in your hands.  You know that you are on the cusp here and I hope you heed my words for what they are worth and no other Judge

sees you back before a Court again.  Please stand down.

Rhys Harrison J