S v Police HC Wanganui CRI 2010-483-57

[2010] NZHC 2330

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-57

S

v

NEW ZEALAND POLICE

Hearing:         12 October 2010 (Heard at Wellington)

Counsel:         J Younger for Appellant

M W Snape for Respondent

Judgment:      12 October 2010   

ORAL JUDGMENT OF MILLER J

[1]      Ms S   appeals against a sentence of 14 months imprisonment imposed for burglary and injuring with intent to injure.  She received a concurrent sentence of one month for assaulting a constable, an offence committed some months after the principal offences.

[2]      The facts of the principal offences are that Ms S   and a co-offender had been drinking with the two victims, who went home at about 2.30am.  This happened on the 4th  of April this year.   Because they had heard a rumour about one of the victims, Ms S   and her associate decided to confront them.  They demanded entry to the victims’ home, and were let in while one of the victims tried to ring the police.    There  was  a  confrontation  during  which  the  male  victim  fled  to  seek

assistance.   Ms S   grabbed the female victim by the hair and punched her

S V N Z POLICE HC WANG CRI 2010-483-57  12 October 2010

repeatedly in the face.  When she fell to the floor Ms S   pulled her up by the hair and slammed her head into a wall.   She dragged the victim out of the house, banging her head against a post as she did so, then kicked her repeatedly about the body.  She dragged the victim down the street by her hair, releasing her only when others intervened.

[3]      The victim received lacerations to her head and face, a bleeding nose and swelling.   She had bruising to her eyes, knee and stomach.   Some of her wounds bled, and she lost a lot of hair.  She is a vulnerable person in that she has what are described as some mental difficulties, although Ms S   says she did not know that at the time.  And she was badly affected by the attack.

[4]      The assault on the police officer was committed on 18 July when Ms S   was  arrested  for  breach  of  bail.     She  was  heavily  intoxicated  at  the  time. Ms Younger submits however, that she did not otherwise breach her bail conditions.

[5]      She was aged 17 at the time of the principal offences and had no previous convictions.

[6]      The pre-sentence report recorded that Ms S   did not consider herself a violent person by nature.  She explained that she had been drinking excessively and never planned to assault anyone, only to have an argument.  She expressed regret. However, she was not motivated to attend anger management counselling and she displayed   limited   insight   into   the   causes   of   the   offending,   including   her consumption, by her own account, of no less than 18 cans of pre-mix drinks. Understandably, the probation officer found that she has a harmful pattern of alcohol abuse.   She was described as immature.   Supervision and community work were available, but the two addresses proposed for home or community detention were considered unsuitable because of poor coverage.   She was otherwise considered a good candidate for home detention.

[7]      The Judge described the offending as very bad.   He summarised it, noting that the summary of facts was not challenged, and he viewed photographs of the female victim.  He observed that it was the third case he had dealt with in the last 10

days in which young people with no prior convictions thought they could assault others, rendering them unconscious, yet get home detention.  I note that the victim in this case was not rendered unconscious, although she did receive heavy blows to the head in circumstances where she was effectively helpless.

[8]      The Judge took a starting point of two years imprisonment, making a minor but unspecified uplift for this being a home invasion.  He gave unspecified credit for age, claimed remorse  and the guilty plea, which was entered on 4  May.   That resulted in the end sentence of 14 months.  The assault on the constable some time later reflected a bad attitude, as the Judge noted, but a concurrent sentence was imposed with no express allowance for totality.

[9]      On appeal, Ms Younger argues that 14 months was too long, and that home detention ought to have been imposed.  The starting point ought to have been seven to 10 months imprisonment.  And the overall discount of 40 per cent was too low. The guilty plea had been entered at the first opportunity and the Judge did not give her  credit  for  her  being  a  first  offender.    Counsel  cited  R  v  Hackell  for  the proposition  that  sentences  of  less  than 12  months  are  imposed  where  there  are

substantial  mitigating  factors.[1]      Home  detention  was  suitable  because  she  now

proposed to live in the main house on the property (which is her mother’s home) rather than in a sleepout, which solved the coverage problem.   This solution was identified by the probation officer at sentencing.

[1] R v Hackell CA131/02, 1 October 2002.

[10]     I agree with the Judge that this was bad offending.   Having regard to the element of home invasion and the sustained attack to the head and body, ending only when others intervened, and the moderate to serious injuries, the starting point of two years was within the range available.  The offending was well within the second of the three bands discussed in R v Harris.[2]

[2] R v Harris [2008] NZCA 528.

[11]     Nor do I accept that the discount for mitigating factors was insufficient.  In my opinion 40 per cent is about right.   The additional allowance that might have been  made  for  previous  good  character  and  prospects  of  rehabilitation  must  be

reduced by the subsequent assault on the constable and the absence of any real insight or commitment to reform.

[12]    I take a different view on the question of home detention, however.   I respectfully disagree with the Judge that it should be refused as a matter of policy having regard to what appears to have been a recent spate of such offending.  That Judges may choose to send a deterrent message to a local community is not in doubt.[3]     But  like cases  must  still  be treated  alike,  and  every offender  must  be considered on her merits.

[3] R v Konui [2008] NZCA 401 at [23]; O’Hanlon v R HC New Plymouth CRI 2009-443-26, 18

December 2009.

[13]     The merits in this case do favour home detention, especially in circumstances where Ms S   has served a salutary two months imprisonment pending this appeal.  Her youth, immaturity and absence of previous convictions together indicate that home detention was the least restrictive sentence here.  Because she was on a

24-hour  curfew  pending  sentence,  she  did  not  undertake  alcohol  counselling. Ms Younger explains that the police resisted the relaxation of her bail so that she could attend counselling.  I note the address and occupants are considered suitable. And Ms S   has family support.   Accordingly, I am satisfied that the Judge erred by imposing imprisonment instead of home detention.

[14]     The sentences of 14 months imprisonment on the two principal charges are set aside, and a sentence of 7 months home detention is substituted.   I need not interfere with the sentence for assaulting a constable as that has already been served.

[15]     The  home  detention  address  is  79  Thatcher  Street,  Wanganui  and  the conditions of home detention are as set out in the probation officer’s report of the

20th  of August.   On release Ms S   is to proceed directly to that address and

there await the arrival of the security officers.

Miller J

Solicitors:

Luke, Cunningham & Clere for Respondent