S v New Zealand Police HC Auckland Cri-2005-404-34

[2006] NZHC 32

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-000034

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2006

Appearances: Mr M Edgar for Appellant

Mr S McColgan for Respondent

Judgment:      3 February 2006

(ORAL) JUDGMENT OF LANG J

Solicitors:

Mr M Edgar, P O Box 6462, Auckland

Crown Solicitor, P O Box 2213, Auckland

S V NEW ZEALAND POLICE HC AK CRI-2005-404-000034  3 February 2006

[1]      Mr S   appeals against the sentence imposed upon him on a charge that, being a male, he assaulted a female.

[2]      The circumstances that gave rise to the charge are that on 5 June 2004 Mr S   was involved in an incident with his sister.     Mr S  ’s father had died sometime earlier, and had left his assets to his three children including Mr S   and his sister.    It seems that Mr S  ’s sister had taken it upon herself to move back into her father’s home without discussing this with other members of the family.

[3]      In the early morning of 5 June 2004 the complainant, Mr S  ’s sister, was at her father’s property.     Mr S   and a friend arrived at the property at approximately 5.20 am.     He had with him a 40 ounce bottle of rum and began drinking.    Over the course of the next twelve hours or so numerous assaults were inflicted upon Mr S  ’s sister by him.   These took the form of backhanded slaps, as well as spitting.

[4]      Mr S  ’s sister later went to the police and he was charged with the charge that has given rise to this appeal.   The charge was defended by Mr S  , but after a defended hearing on 26 October 2000 he was convicted by Judge Rushton.   He was remanded on bail for sentence on 15 November 2004.

[5]      A difficulty has arisen in relation to the basis upon which Mr S   was convicted, because the notes of Judge Rushton’s decision cannot now be located by the District Court.   In an earlier minute in this proceeding Asher J directed that his minute be referred to Judge Rushton with a request that she endeavour to shed some light upon the basis on which she reached her decision.    Judge Rushton has now provided a helpful memorandum in which she says:

… I am unable from the file to reconstruct the decision but I can recall giving a detailed decision in this case and am now able, having refreshed my memory from the notes of evidence, to give a brief summary of the reasons given.     In essence, the issue is one of credibility.     The defendant was extremely drunk at the time of the incident as were all parties.    I accepted the evidence of the complainant and the witness (Brian Green) and rejected the evidence of the defendant.   The complainant’s evidence was supported by Mr Green’s who witnessed the assault in his bedroom by the defendant on the complainant and gave evidence that when she came into his bedroom she was covered in blood all down her T-shirt and had bruises on her chin.

[6]      Given the matters referred to in the memorandum it appears clear that Judge Rushton accepted the complainant’s version of events for the most part.   Her version was also supported by the evidence of Mr Green  and  also,  to  some  extent,  by photographs of her injuries that were taken a short while after the incident.

[7]      The facts giving rise to the charge were not traversed by the Judge when she sentenced Mr S   on 15 November 2004.   She commenced, however, by advising Mr S   that she was going to “tie [him] down pretty solidly for the next two years”.   She also advised Mr S   that a “final warning” was being placed on his file.   If he offended again in the future, it was likely that he would be sent to prison.

[8]      Judge Rushton sentenced Mr S   to 200 hours community work and two years supervision.   The conditions of his supervision were that he:

a)        Was to undertake counselling and or treatment, including residential treatment, for drug and alcohol abuse.

b)Was to undertake counselling for violence prevention, relationship counselling and such other counselling as directed.

c)        Was to take all practical steps to obtain employment. d)         Was not to consume or possess alcohol or illicit drugs.

e)        Was not to enter any premises licensed for the consumption of alcohol without the consent in writing of the Probation Officer.

[9]      Mr S   appeals against that sentence on the basis that it is manifestly excessive in the circumstances.    Whilst Mr Edgar accepted on Mr S  ’s behalf that the conditions imposed in relation to Mr S  ’s supervision could not be criticised, nevertheless when taken along with the sentence of two years supervision the overall effect of the sentence was that it was manifestly excessive.

[10]     Viewed in the round I do not consider that it can realistically be said that the sentence imposed on Mr S   by Judge Rushton was manifestly excessive.   First,

the circumstances of the offending were such that it was a relatively serious charge of its type.   It involved repeated incidents of violence against the complainant over a lengthy period of time.

[11]     Mr Edgar submitted that the incident could perhaps have been viewed more leniently by the District Court Judge on the basis that it arose out of a  family disagreement regarding Mr S  ’s estate.    I do not accept that submission.    If anything, the fact that the attack was on Mr S  ’s sister was in my view an aggravating feature.     The Courts cannot view family disputes that escalate into violence on a more merciful basis than disputes that do not have that particular factor.    The incident must be viewed for what it was, and that is a lengthy and sustained assault on a female.

[12]     I  also  accept  Mr  McColgan’s  submission  that  there  were  few,  if  any, mitigating features.   Mr S   had been convicted following a defended hearing and he was therefore not entitled to credit in relation to any plea of guilty.    The pre- sentence report does not disclose any feelings of remorse on the part of Mr S   for his actions.

[13]     There are also disturbing aspects about Mr S  ’s past history.   Mr S   has five prior convictions that have aspects of violence in them.    The most recent prior conviction was for assault under the Crimes Act, for which he was sentenced to six months’ supervision on 29 September 2002.   In addition, Mr S   has six prior convictions for alcohol related offending.   The most recent of these is a conviction in 1998 for driving with excess breath alcohol on a further subsequent occasion.   He was sentenced to 80 hours’ community service on that charge, together with six months’ supervision as well as a period of disqualification from driving.   Although his list of convictions cannot be described as extensive, nevertheless it does illustrate that Mr S   is prone to offending involving both violence and alcohol.

[14]     The issue of alcohol was clearly to the forefront of the Judge’s decision.   She imposed conditions that were designed expressly to deal with Mr S  ’s propensity to consume alcohol and then become involved in violent incidents.   As I have said,

it is simply not possible to take issue with the conditions of supervision, either individually or taken as a whole.

[15]     Mr Edgar submitted that the sentence of supervision in itself ought to have been sufficient.   I do not think, however, that that submission is properly founded. The  period  of  supervision,  and  the  conditions  imposed  in  relation  to  it,  were obviously designed to address Mr S  ’s own problems.   Although they may have provided an element of difficulty for him, I do not consider that they can properly be regarded as punitive in nature.   The learned District Court Judge was entitled in my view to add a punitive element to the sentence and this was achieved by the sentence of community work.   The sentence of 200 hours’ community work was one-half of the maximum permissible.

[16]     On this point it needs to be noted that Mr S   had earlier been sentenced to a period of community work of 80 hours, and there was no reason why a further sentence of community work should not have been imposed on this occasion. Moreover, the probation report suggests that Mr S   was actually expecting to receive a sentence of community work.     He specifically advised the probation officer that, although he had an injury to his knee, nevertheless that injury would not affect his ability to comply with a sentence of community work.

[17]     Given that the most recent sentence of community work was one of 80 hours, I consider that the Judge was entitled to impose an increased sentence given Mr S  ’s further offending.   I do not consider that the sentence of 200 hours could be described as manifestly excessive, either on its own or in conjunction with the period of supervision that was imposed.

[18]     All of these factors persuade me that it would not be appropriate for me to interfere with the sentences imposed in the District Court.     The appeal against sentence is accordingly dismissed.

Lang J