Setter v Police - [2012] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-31 [2012] NZHC 1834

BETWEEN JASON PAUL SETTER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 and 25 July 2012

Counsel: R Vigor-Brown for Appellant
L L Owen for Respondent

Judgment: 25 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:
R Vigor-Brown, Rotorua
Crown Solicitor, Rotorua

SETTER V NEW ZEALAND POLICE HC ROT CRI 2012-463-31 [25 July 2012]

The appeal

[1] Mr Setter seeks an extension of time to appeal and, if granted, to appeal against an effective sentence of two years and 11 months imprisonment on charges arising out of incidents of domestic violence that occurred on 16 and 17 December
2011.

Facts

[2] Mr Setter lived in a de facto relationship with his female partner (the complainant) and her young son. They had been in a relationship for some four years or so. On 16 December 2011, there was tension within the home, following an argument between Mr Setter and the complainant’s son. As a result, several “heated” text messages were exchanged between Mr Setter’s partner, the complainant and Mr Setter that day.

[3] At about 11.30pm on 16 December 2011, Mr Setter arrived home in an intoxicated state. The complainant was at that stage asleep on a fold-out bed in the lounge.

[4] Mr Setter approached her. He abused her verbally while she lay on the bed. He demanded that she sign the tenancy of the house over to him. The complainant attempted to get her telephone to call for help. However, Mr Setter, forcibly, took it from her. When the complainant tried to retrieve the telephone, Mr Setter took her with both hands, pushed her and caused her to fall back onto the floor where she hit her head against the corner of the couch. This incident gave rise to a charge of male assaults female albeit that that charge was laid on a representative basis and also covered other aspects of the facts to which I shall refer.

[5] Mr Setter then threatened to “smash [the complainant’s] head in”. He continued to offer verbal abuse. Finally, she ran into the kitchen, picked up her keys and went through the front door towards a friend’s house to seek help. Mr Setter was able to stop her, while she was running across the front lawn. Using both hands, he

grabbed her by the waist and threw her to the ground. The complainant later retrieved her telephone, ran down the street and called the Police. Mr Setter left the area before the Police arrived and could not at that stage be located.

[6] At approximately 6.30am on 17 December 2011, Mr Setter returned to the house and found the complainant asleep on the fold-out bed. He smashed a glass pane in the door to access a sunroom area of the house and then reached through the broken glass to enter the lounge. That was done after going through a second door, which had been locked with a security…

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 Setter v Police

Details

AGLC: Setter v Police [2012] NZHC 1834
Case: [2012] NZHC 1834
Decision Date: 25 July 2012

CaseChat Overview and Summary

The appeal in Setter v Police concerns an application by Mr Setter to extend the time to appeal his effective sentence of two years and 11 months imprisonment for charges arising from incidents of domestic violence. The High Court was required to determine whether the sentence was excessive and whether sufficient credit had been given for Mr Setter's guilty pleas. The key legal issue was whether the District Court judge had erred in the credit given for the late guilty pleas and whether this resulted in an excessive sentence. The Court found that the District Court judge's starting point of two years six months imprisonment was generous, and a starting point of three years would have been more appropriate given the aggravating factors. However, the Court concluded that the sentence of two years and nine months, which made the sentence for remission of fines concurrent with other sentences, was adequate to reflect the offending. The appeal was allowed to the extent of making the sentence of two months imprisonment for remission of fines concurrent with other sentences, reducing the effective term of imprisonment to two years and nine months.

Orders