Ray v Police - [2019] NZHC 2958

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-80

[2019] NZHC 2958

IN THE MATTER of an appeal against conviction and sentence

BETWEEN

DAVID BYRON RAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 October 2019

Counsel:

AE Ngapo-Lipscombe for appellant G Banuelos for respondent

Judgment:

14 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 14 November 2019 at 2:30 pm.

Registrar/Deputy Registrar

Date……………

Solicitors: NL Lawyers, Tokoroa
Gordon Pilditch, Rotorua

Ray v New Zealand Police [2019] NZHC 2958 [14 November 2019]

[1] Mr Ray pleaded guilty to one charge of common assault,1 one of threatening to kill,2 one of unlawful possession of a firearm,3 one of wilful damage,4 and one of reckless driving.5 He was sentenced to nine months’ supervision. He now appeals on the grounds he should have been granted a discharge without conviction.

Offending

[2] All of Mr Ray’s offending is against his then-partner. They had been in a relationship for approximately two years and have a son together, who was born in June 2018. At the time of being charged (and sentenced), Mr Ray was 17 years old (the victim was 23).

[3] The common assault charge is representative. The summary of facts records that on multiple occasions throughout the relationship Mr Ray would grab the victim, throw her around, hit her on the arms and legs, and on some occasions punch her on the jaw. She received bruising as a result of these assaults.

[4] The threatening to kill and unlawful possession of a firearm arise out of a single event in September 2018. After an argument, Mr Ray became angry, and got a .22 rifle from a cupboard in the hallway. He then followed the victim into their baby’s room and found her hiding by the cot, where the child was asleep. Mr Ray told the victim “you can’t leave or I’ll shoot you”. The victim was able to message for help and her brother arrived at the address. A scuffle ensued between the two men over the rifle, but the victim’s brother ultimately gained control of the firearm and took it away. The firearm was in fact unworkable, although it is not clear the victim was aware of that at the time.

1      Charged under s 9 of the Summary Offences Act 1981, with a maximum penalty of six months’ imprisonment or a fine not exceeding $4,000.
2      Crimes Act 1961, s 306. Maximum penalty seven years’ imprisonment.
3      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding
$5,000.
4      Charged under s 11(a) of the Summary Offences Act 1981, with a maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
5      Land Transport Act 1998, s 35(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500. The court must order the person to be disqualified from driving for six months or more.

[5] The…

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 Ray v Police

Details

AGLC: Ray v Police [2019] NZHC 2958
Case: [2019] NZHC 2958
Decision Date: 14 November 2019

CaseChat Overview and Summary

In this case, David Byron Ray appeals against his conviction and sentence imposed by the District Court. Mr Ray pleaded guilty to charges of common assault, threatening to kill, unlawful possession of a firearm, wilful damage, and reckless driving, all of which were committed against his then-partner. The District Court sentenced Mr Ray to nine months’ supervision and disqualified him from driving for six months. Mr Ray argues that he should have been granted a discharge without conviction, which is the least restrictive sentence available, having regard to New Zealand’s obligations under the United Nations Convention on the Rights of the Child. The Crown argues that the offending was serious, involving multiple instances of family violence, and the consequences of a conviction would not be out of all proportion to the gravity of the offending. The Court found that the District Court did not err in failing to grant a discharge without conviction, and the sentence imposed was proper and appropriate, given the seriousness of the offending and Mr Ray’s personal circumstances. The appeal is dismissed. The Court also found that the District Court had jurisdiction to make the protection order, as there was no positive objection by the victim. If there is a desire or perceived need to remove or vary the terms of the order, the proper approach is to apply to the Family Court for it to be varied or discharged.

Orders