S v Police - [2013] NZHC 1026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0078 [2013] NZHC 1026

BETWEEN S Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 April 2013

Appearances: G H Vear and T M P Muakitangata for Appellant
S G J Locke for Respondent

Judgment: 9 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 9 May 2013 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Meredith Connell, Crown Solicitor, Auckland: susanna.locke@meredithconnell.co.nz

Copy to:
Public Defence Service, Waitakere Office tesua.muakitangata@justice.govt.nz / genevive.vear@justice.govt.nz

S V POLICE HC AK CRI-2013-404-0078 [9 May 2013]

[1] The Appellant appeals against a sentence imposed by Judge Taumaunu in the

District Court at Waitakere on 11 March 2013.1

[2] The Appellant was convicted on one charge of assault with intent to injure following a defended hearing before the Judge on 7 December 2012. The Judge sentenced the Appellant to three years’ imprisonment, being the maximum sentence possible on the charge.

[3] The Appellant contends that the end sentence was manifestly excessive. In particular, the Appellant contends that the Judge erred in declining to make any reduction in sentence (whether to the starting point or in considering mitigating factors personal to the offender) because of the Appellant’s mental illness. Counsel for the Appellant submits that a discount of 12 to 30 per cent should have been allowed, being the range of discounts given by way of example in E v R.2

[4] The Crown opposes the appeal and, in summary, submits that the sentence that the Judge imposed was open to him in the circumstances.

Background

[5] The charge arose from an assault by the Appellant on 8 May 2012. There is no doubt that the assault was serious. The victim was the Appellant’s wife and the assault took place at their address at approximately 11 pm. The Appellant suspected that the victim had been unfaithful to him, accused her of the same and was otherwise verbally abusive. The Appellant demanded the password to the victim’s Facebook page, she refused it and he then strangled the victim by putting his hands around her neck. The victim lost consciousness. The Appellant was still pinning her down when she did regain consciousness. The Appellant told the victim that he would kill her and then kill himself.

[6] The Judge fixed a starting point of three years’ imprisonment having regard

to:

(a) the need to impose a sentence sufficient to denounce the offending and to act as a deterrent to the Appellant and to the community; and

(b)the fact that the offending took place “close on the heels” of two male assaults female offences against the same victim, and whilst the Appellant was bailed and awaiting sentence on those offences. The Judge emphasised that he considered the two earlier offences aggravated the offending itself.

[7] The Judge then turned to matters personal to the Appellant. It is apparent from the Judge’s notes that the only matter advanced to…

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 S v Police

Details

AGLC: S v Police [2013] NZHC 1026
Case: [2013] NZHC 1026
Decision Date: 9 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Peters presided over an appeal brought by S against the New Zealand Police. The Appellant, S, appealed against a sentence imposed by Judge Taumaunu in the District Court at Waitakere on 11 March 2013. The Appellant had been convicted on one charge of assault with intent to injure, following a defended hearing on 7 December 2012. The Judge sentenced the Appellant to the maximum sentence of three years’ imprisonment. The Appellant contended that the sentence was manifestly excessive, particularly as the Judge had failed to reduce the sentence due to the Appellant’s mental illness. The Crown opposed the appeal, submitting that the sentence imposed was open to the Judge in the circumstances.

The legal issues in this case were whether the sentence imposed by the District Court was manifestly excessive, and if the Judge had erred in not reducing the sentence due to the Appellant’s mental illness. The Appellant argued that a discount of 12 to 30 per cent should have been allowed, as suggested in the case of E v R. The Crown contended that the sentence was justified given the seriousness of the offence and the risk of reoffending.

Justice Peters found that the starting point and end sentence of three years appeared to be high, even considering the seriousness of the domestic assault. The Judge had acknowledged that there could be justification for reducing the sentence on account of the Appellant’s mental illness, which had caused, in whole or in part, the Appellant’s offending. However, it was not open to the Judge to withhold the discount otherwise due on the basis that the Appellant posed a future risk to the victim on account of his mental illness. If the Appellant posed a risk to the victim on his release, it was a risk that must be addressed under the relevant mental health legislation. Justice Peters considered a discount of 25 per cent warranted, given the link between the Appellant’s illness and his offending, and found the sentence imposed to have been manifestly excessive. The appeal was allowed, and the sentence was reduced to two years, three months’ imprisonment. The other orders made by the Judge remained in place.

Orders