Sadlier v Police - [2018] NZHC 993

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2018-44-9 [2018] NZHC 993

BETWEEN
TREVOR TEREWA SADLIER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 May 2018 (via AVL)

Counsel:

W Hawkins for Appellant
F E Cleary for Respondent

Judgment:

8 May 2018

JUDGMENT OF ELLIS J

[1] Mr Sadlier appeals his sentence of six months’ imprisonment following his guilty plea to, and conviction on, one charge of common assault.1 In essence he says that the eight month starting point adopted by the sentencing Judge was manifestly excessive and/or that the Judge did not, and was unable properly to, consider a sentence of home detention because a home detention appendix had not been prepared.

Background

[2] By way of background I can do no better than set out Judge Adeane’s sentencing notes more or less in full. He said:

[2] The summary of facts informs the Court that Mr Sadlier is in a relationship with the victim's mother. In the early hours one Saturday morning, he went into the victim's bedroom where the victim was to be found and without warning began punching him in the face with a closed fist. He was punched four or five times and the summary of facts says that his nose was split causing significant loss of blood.

1 Laid under s 196 of the Crimes Act 1961.

SADLIER v POLICE [2018] NZHC 993 [8 May 2018]

[3] When spoken to, the defendant attempted to offer an explanation that the complainant had damaged his letterbox the night before.

[4] Crimes Act assault is punishable by a maximum of 12 months' imprisonment. There is certainly no tariffs for assault at this level because the circumstances vary so widely.

[5] The probation report in the case is highly instructive as to Mr Sadlier’s attitude. He has no real remorse for the offending and continues to justify his behaviour by reference to the behaviour of the complainant. It is suggested in the report that Mr Sadlier has a sense of entitlement to use violence to settle disputes and that proposition is certainly supportable when one looks at his previous criminal history which is regrettably marked by instances of violence, so that his recent history reads "contravention of protection order, wilful damage, threatening behaviour, contravention of protection order, common assault, common assault, assault with intent to injure" and that is simply the entries since 2009. The same theme is to be found further back in time with breaches of protection order, common assaults, assaults on females being a well-established pattern of behaviour on the part of this defendant over a period of 25 years.

[6] The time has now come where deterrence and denunciation loom large in sentencing Mr Sadlier. This was completely uncalled-for violence and a sentence of imprisonment is the least that can be imposed to mark society's disapproval of this sort of ongoing behaviour. That is the recommendation of the probation officer also.

[7] I adopt…

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 Sadlier v Police

Details

AGLC: Sadlier v Police [2018] NZHC 993
Case: [2018] NZHC 993
Decision Date: 8 May 2018

CaseChat Overview and Summary

Trevor Terewa Sadlier appealed against his sentence of six months' imprisonment following his guilty plea to one charge of common assault. The appellant argued that the starting point of eight months adopted by the sentencing Judge was manifestly excessive and that the Judge failed to consider a sentence of home detention because a home detention appendix had not been prepared. The sentencing Judge had imposed a sentence of six months' imprisonment followed by six months of release conditions, and the appellant contended that the court did not adequately consider home detention as a sentencing option.

The legal issues before the court were whether the starting point of eight months' imprisonment was excessive and whether the sentencing Judge adequately considered home detention as a sentencing option. The court considered various cases to determine whether the starting point was within the available range, taking into account the aggravating factors of the case, such as the appellant entering the victim's home early in the morning when the victim was still in bed, multiple blows directed at the head, and an element of vigilantism in the appellant's justification of his behaviour. The court also considered whether the sentencing Judge was bound to consider home detention despite the absence of a home detention appendix.

The High Court found no error in the sentencing Judge's approach and dismissed the appeal. The court concluded that the starting point of eight months' imprisonment was justified, given the aggravating factors in the case, and that the sentencing Judge had adequately considered home detention despite the absence of a home detention appendix. The court held that the Judge's notes expressly recorded that he had considered home detention but formed the view that imprisonment was the only sentence that adequately met the relevant purposes and principles of sentencing. The court further held that it was unlikely that a home detention appendix would have added to the probation officer's assessment in any material way.

The High Court dismissed the appeal, and the sentence of six months' imprisonment imposed by the sentencing Judge was upheld.

Orders