Robertson v Police - [2012] NZHC 3103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-298 [2012] NZHC 3103

BETWEEN SHANE JOSEPH ROBERTSON Appellant

ANDTHE POLICE Respondent

Hearing: 12 November 2012

Appearances: S Clark for appellant
J MacGibbon for respondent

Judgment: 21 November 2012

JUDGMENT OF ALLAN J

Solicitors:
B Meyer, Auckland law@badenmeyer.com
Crown Solicitor Auckland Julia.macgibbon@meredithconnell.co.nz

ROBERTSON V POLICE HC AK CRI 2012-404-298 [21 November 2012]

Introduction

[1] Mr Robertson pleaded guilty to three summary charges of common assault and one of injuring with reckless disregard. He was sentenced to 18 months imprisonment on the charge of injuring with reckless disregard, and six months imprisonment on each of the remaining three charges of common assault, to be served concurrently.[1] He now appeals against that sentence. There is no challenge to the calculation of the end sentence; rather the appellant’s case on appeal is that he ought to have been sentenced to home detention instead of imprisonment.

Offending background

[1] R v Robertson DC Pukekohe CRI-2012-057-514, 28 August 2012

[2] The appellant and his four victims had all attended a party in Waiuku. Soon after midnight on 10 March 2012, they left the party. Not long afterwards the appellant approached the victims, who were by then standing together at a nearby intersection. Evidently the appellant took exception to the fact that they had earlier been in the company of the younger sister of the appellant’s partner. There was a brief discussion between the appellant and the group, but the victims walked away because they did not feel comfortable around Mr Robertson. He pursued them. Once he caught up with them he punched them one after another with a closed fist. The attack was completely unprovoked.

[3] His first victim, Mr Neville, was struck in the face. He sustained a bloody nose. The second victim, Mr Honey, was struck on the back of his neck. He sustained a sore neck. The third victim, Mr Robert Tapfield, was struck in the face. No visible injuries were sustained. The fourth victim, Mr Daniel Tapfield, was the last to be assaulted. On being approached by the appellant, he raised his arms in a non-confrontational manner, telling the appellant he did not want to fight, As he was backing away in self-defence, Mr Robertson punched him in the face. As a result of the blow to the head, the victim fell to the ground and hit his head on the tar seal of the roadway. It is uncertain whether the blow struck by the appellant or the impact

of his head hitting the road rendered him unconscious. Judge Hubble, the sentencing

Judge, left that question open in his sentencing remarks.

[4] Mr Daniel Tapfield was taken to hospital where he remained unconscious for some time. There was a degree of bleeding within the brain, a serious laceration to the back of his head and a significant cut to his lip.

[5] In a detailed victim impact report Mr Tapfield said that he remained badly affected by the assault several months…

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.

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Details

Case: [2012] NZHC 3103
Decision Date: 21 November 2012

CaseChat Overview and Summary

Shane Robertson has appealed against his sentence for assault and injuring with reckless disregard, arguing that he should have been sentenced to home detention instead of imprisonment. The sentencing judge had imposed a sentence of 18 months imprisonment for the injury charge, and six months for each of the three assault charges, to be served concurrently. The appeal does not challenge the overall length of the sentence, but rather its form. The appellant was 18 at the time of the offending and had no previous convictions, though his history of offending in the Youth Court was taken into account. The pre-sentence report recommended a sentence of community detention, and identified issues including the appellant's propensity for violence, his attitude towards using violence to protect family and friends, and his lack of employment. The judge rejected the recommendation for home detention, considering that the seriousness of the injuries to the principal victim outweighed the factors in favour of home detention. The appeal was allowed, and the sentence of imprisonment was quashed. The judge substituted a sentence of nine months home detention, with special conditions including completion of an alcohol and drug assessment and an anger management programme.

The court considered the correct approach to appeals against the refusal to grant home detention, which involves identifying error in the exercise of the sentencing judge's discretion. The sentencing judge had acknowledged that home detention might be a better outcome for both the appellant and the community, but considered that the seriousness of the injuries suffered by the principal victim outweighed the other factors. The appeal judge disagreed, finding that the appellant's culpability did not outweigh the factors favouring home detention. The appeal judge considered that home detention was the appropriate sentence, and that the appellant was in need of focused assistance with respect to his alcohol and violence issues. The appeal judge substituted a sentence of nine months home detention, taking into account the portion of the sentence of imprisonment already served by the appellant. The appeal judge also imposed special conditions, including a requirement to attend and complete an alcohol and drug assessment and an anger management programme.

Orders