Rooney v Police - [2014] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2014-419-000024 [2014] NZHC 1033

BETWEEN
KOTAHI MORGAN MIKAERA

ROONEY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 May 2014

Appearances:

G A Walsh for the Appellant
T C Tran for the Respondent

Judgment:

22 May 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 22 May 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ROONEY v NEW ZEALAND POLICE [2014] NZHC 1033 [22 May 2014]

Introduction

[1] Mr Rooney appeals against a sentence of 13 months’ imprisonment having pleaded guilty to assaulting his 11 year old daughter with a weapon. The maximum penalty for this offence is five years’ imprisonment.

Facts

[2] On the morning of 3 July 2013, Mr Rooney’s daughter was getting ready for school when her mother discovered rotten fruit in her school bag and told her to clean it out. Mr Rooney overheard this. He picked up a plastic pipe, 70cm long and
15mm in diameter, and struck his daughter approximately five times on the back of her legs and once on her right arm. He told her not to say anything about what had happened when she left for school, crying. Mr Rooney’s daughter suffered minor bruises to her left leg and right arm, although these are not apparent in the photographs that were taken of these areas. The victim impact statement indicates there are no lasting effects.

[3] Mr Rooney has a number of previous convictions for offences involving violence, including assault with intent to injure, male assaults female, aggravated robbery, and wounding with intent to cause grievous bodily harm. However, these offences were committed between 1995 and October 2000 when Mr Rooney was aged between 16 and 21. He is now 35 years of age. There have been no relevant convictions in the last 14 years other than breach of a protection order in March 2012 for which Mr Rooney was sentenced to intensive supervision. The current offending occurred while Mr Rooney was subject to that sentence.

Decision under appeal

[4] Judge Connell noted Mr Rooney’s prior convictions for offences involving violence. He accepted that Mr Rooney appeared to have matured and that there was no recent history of such offending. The Judge also accepted that Mr Rooney did not want to hurt his daughter and had acted out of frustration. However, the Judge considered that nothing less than a sentence of imprisonment was required to serve

the purposes of denunciation and deterrence in cases like this where a person assaults a child in his or her care, using a weapon.

[5] The Judge adopted a starting point of 15 months’ imprisonment. He allowed a discount of four months for Mr Rooney’s early guilty plea. This resulted in an end sentence of 11 months’ imprisonment. However, the record of hearing shows that Mr Rooney was sentenced to 13 months’ imprisonment. This discrepancy has apparently not been corrected.

Appeal

[6] Mr Rooney…

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 Rooney v Police

Details

AGLC: Rooney v Police [2014] NZHC 1033
Case: [2014] NZHC 1033
Decision Date: 22 May 2014

CaseChat Overview and Summary

The case of Rooney v Police concerns Mr Rooney's appeal against a sentence of 13 months’ imprisonment for assaulting his 11-year-old daughter with a weapon. The maximum penalty for this offence is five years’ imprisonment. The High Court was tasked with determining whether the sentence imposed was appropriate and if the starting point adopted by the District Court was too high.

The key legal issue was whether the starting point of 15 months’ imprisonment, which was reduced to 11 months’ imprisonment after considering Mr Rooney's early guilty plea, was excessive. Mr Rooney argued that the starting point was too high and that the resulting sentence was manifestly excessive, while the respondent argued that a short term of imprisonment was the appropriate response. The Court needed to review the sentencing principles and compare the facts of this case with other relevant cases to determine the appropriate sentence.

The Court held that the starting point of 15 months’ imprisonment was manifestly excessive. It noted that Mr Rooney's previous convictions for violent offending were historical and that there had been no convictions for violent offending in the past 14 years. The Court considered the vulnerability of the victim, the fact that the victim was the appellant’s daughter, and the seriousness of the breach of trust, but also noted that the assault was not one of the more serious of its type and caused no significant physical or psychological injury. The Court found that the sentence imposed was manifestly excessive, and that Mr Rooney had already served four months’ imprisonment, which was a sufficient penalty in all the circumstances.

The appeal was allowed. The sentence imposed in the District Court of 13 months’ imprisonment was quashed and replaced with a sentence of imprisonment of four months, with the conditions imposed by the sentencing Judge continuing to apply to the substituted sentence.

Orders