Rewita v Police
[2013] NZHC 2175
•26 August 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2013-425-000029 [2013] NZHC 2175
MICHAEL WILLIAM REWITA
v
NEW ZEALAND POLICE
Hearing: 26 August 2013 Counsel:
S Claver for Appellant
M J Thomas for RespondentJudgment:
26 August 2013
JUDGMENT OF PANCKHURST J
[1] This is an appeal against a sentence of 20 months imprisonment imposed in relation to four offences which were sentenced together. The appellant faced a charge of assault with intent to injure, a charge of burglary and two of breaching protection orders. His offending related to three separate occasions.
[2] On 25 November 2012, he was with his partner. They were drinking together and this obviously led to arguments. There was a protection order in being having been made in the District Court in March 2010. The complainant tried to disassociate herself by lying on the couch covered in a blanket. The appellant however was not to be dissuaded. He pulled her to the ground. Initially he slapped her with an open hand, but then both punched and kicked her. Her injuries were not serious, rather consisting of swelling, bruising and some resulting pain. She was
however off work for a number of days.
REWITA v NEW ZEALAND POLICE [2013] NZHC 2175 [26 August 2013]
[3] Following the assault, the appellant picked up the complainant’s laptop and deliberately broke it in two. He then fled from the house and the police were phoned. In the result, the complainant moved out of the property and resided for a time in a unit in a camping ground.
[4] The next offending occurred on 2 February. The appellant at this point was on bail. He went to the complainant’s home to speak to his daughter. There was another argument, he was told to go, but refused to do so, and a further complaint of breach of the protection order resulted. The Judge described this as not a serious breach of its kind.
[5] However, on 4 May there was a further incident. By then I assume that the appellant and the complainant were on somewhat better terms. He was out drinking and sent a text to his partner to come and pick him up. She did so, but a further argument broke out when they were together in the car. This resulted in her driving to the police station to report another breach of the protection order. However, the appellant fled from the car, went back to the complainant’s home and entered it through a bathroom window. He then turned on elements on the oven, turned them on to full. He sent a text message to his partner saying that she had left the oven on and had better come home and do something about it.
[6] The complainant eventually did that and when finding that her house had been entered, she went to the appellant’s home and caused property damage to items of his.
[7] The appellant entered pleas of guilty to the charges and was sentenced in the District Court on 28 June. The Judge reasoned that the assault with intent to injure warranted a starting point of 18 months imprisonment. The less serious breach of protection order, an uplift of two months; and the 4 May burglary and breach of a protection order, a further uplift of four months. He then said that the appellant was a recidivist in relation to violence of this kind and further increased the sentence by six months to reach a total of 30 months imprisonment.
[8] However, an allowance of 10 months (33 percent) was allowed for the guilty pleas in order to arrive at the end effective sentence of 20 months imprisonment. This term was imposed in relation to the assault charge with concurrent lesser sentences in relation to the other offending. Mr Claver has challenged the sentencing process on the basis that the Judge disavowed using the guideline sentencing
judgment of Nuku1 and, it was contended, fell into error as a result.
[9] It is correct that the Judge said:
I do not accept that the authority of Nuku applies to assaults of this kind. I think that one has to have regard to the maximum penalty available which is three years and assess where the offending overall fits into that penalty range. The easiest way for me to do that is to look at a number of factors that courts have used when assessing responsibility or culpability for violent offending.
[10] Soon after this he looked at some factors relevant to the nature of the assault and expressed the view that this was offending that within the band of assault with intent to injure was over 50 percent, going towards two-thirds along the relevant level of seriousness of this offending. On this basis he adopted the 18 months starting point for the assault with intent to injure.
[11] Mr Claver submitted that the only proper approach was to use the three bands identified in Nuku, but recognising the lesser maximum penalty in fixing a starting point and that the Judge’s failure to do this was wrong in principle. However, there was a problem with that contention because counsel accepted that 18 months was an appropriate starting point for the assault with intent to injure if one had regard to the three bands identified in Nuku.
[12] It seems to me that the acceptance of that is necessarily fatal to the present appeal unless the other steps in the sentencing process can be faulted, but there is no express criticism of them. To my mind, this was a case where it was essential to stand back and have regard to the overall pattern of offending as well as the
individual offences.
1 Nuku v R [2012] NZCA 338.
[13] The appellant is a mature man who has an unenviable list of previous convictions. He was to be sentenced for two breaches of protection orders, a nasty assault and a burglary of his partner’s house. Viewed in the round, I am satisfied that the end sentence of 20 months imprisonment was within the available range as Ms Thomas submitted. The manner in which the sentence was arrived at, including the allowance for the guilty pleas was unconventional, but the sentence itself has not been shown to be clearly excessive and accordingly the appeal is dismissed.
Solicitors:
S N Claver, Dunedin
M J Thomas, Invercargill
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