Scoles-Young v Police - [2016] NZHC 1120

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2016-476-2 [2016] NZHC 1120

BETWEEN
MICHAEL SCOLES-YOUNG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 May 2016

Appearances:

T Jackson for Appellant
M Beattie for Respondent

Judgment:

26 May 2016

JUDGMENT OF MANDER J

[1] The appellant, Michael Scoles-Young, appeals his sentence of one year ten months imprisonment imposed on his conviction for injuring a police officer. Mr Scoles-Young pleaded guilty after a sentence indication, however he maintains the sentencing Judge erred in not imposing a sentence of home detention.

Background

[2] Mr Scoles-Young was arrested after police observed him deflating a tyre on a police vehicle. While being spoken to he threatened the arresting officer. During the journey to the police station Mr Scoles-Young head-butted a constable. He then leant over and sunk his teeth into the constable’s thigh, biting through his trousers with sufficient force to break the flesh. The bite resulted in a severe open laceration
and the officer was required to be hospitalised.

SCOLES-YOUNG v NEW ZEALAND POLICE [2016] NZHC 1120 [26 May 2016]

The sentence indication

[3] Mr Scoles-Young sought a sentence indication.1 After reviewing the relevant facts the Judge observed that the officers were acting in the execution of their duty and that the offending had both a physical and emotional impact on the officer who had been attacked. It was noted that Mr Scoles-Young had previous convictions for fighting in 2014, injuring with intent in 2012, and assault with intent in 2009.

[4] On the basis the injuring charge fell into the second band of Nuku v R, a starting point of two years was taken.2 The Judge accepted that deterrence and denunciation were important considerations in a case of this kind. The starting point was uplifted by three months in recognition of the relevant recent convictions. It was intimated that a discount of five months would be extended to reflect the plea if entered and to acknowledge efforts towards rehabilitation if established.

[5] The Court had received references and material in support of the defendant but the Judge considered the weight to be afforded to that material could not be assessed until the Probation Service had made inquiries and a pre-sentence report prepared.

[6] A sentence of one year ten months imprisonment was ultimately indicated. In relation to the possibility of home detention, the sentencing Judge stated:3

Because of the circumstances I am not able to predict whether home detention is available or not. I am not prepared to give an indication based on home detention. The availability of home detention depends very much upon a very positive pre-sentence report coupled with a supportive and positive living environment and other forms of support which are likely to assist the defendant to focus upon rehabilitation and avoiding further offending. Those matters cannot be presumed given the rate at which the defendant has committed offences in the past and the extent of his previous conviction history. Mr Brown [the appellant’s counsel at that time]…

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.

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Details

Case: [2016] NZHC 1120
Decision Date: 26 May 2016

CaseChat Overview and Summary

Michael Scoles-Young appealed against his sentence of one year ten months imprisonment for injuring a police officer. Scoles-Young maintained that the sentencing Judge erred in not imposing a sentence of home detention. He argued that the sentencing Judge had initially indicated the possibility of home detention, depending on the content of a pre-sentence report, but ultimately declined to consider such a course after being provided with further information relating to Scoles-Young's previous offending.

The court considered the appeal and whether the sentence indication hearing and the final sentence were consistent. The court found that the term of imprisonment was within the range of sentence and that Scoles-Young's submissions did not provide grounds to support a conclusion that the Judge erred in her assessment. The court also found that the further information provided by the police was relevant to the sentencing exercise and that the court could not be estopped from taking such material into account.

The court concluded that the appeal could not succeed as the sentence imposed was correct and consistent with the sentence indication. The court dismissed the appeal.

No specific orders were made in the judgment.

Orders