Smit v Police - [2016] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000053 [2016] NZHC 2518

BETWEEN
ADRIAN WILLEM SMIT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2016

Appearances:

L Wilkins for the Appellant
T Tran for the Respondent

Judgment:

20 October 2016

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors: L Wilkins,
T Tran, Crown Solicitor, Hamilton

SMIT v NEW ZEALAND POLICE [2016] NZHC 2518 [20 October 2016]

Introduction

[1] The appellant, Mr Adrian Smit, pleaded guilty in the District Court at Hamilton to one charge of injuring with intent to injure, two charges of male assaults female, two charges of possession of a firearm without a licence and one charge of wilfully ill-treating a child. He was sentenced by Judge Wilson QC on 9 August
2016 to a period of 20 months’ imprisonment.

[2] No issue is taken with the Judge’s approach to formulation of that sentence and counsel responsibly accepts that the term of 20 months was appropriate. The only question on the appeal is whether the Judge erred in refusing to commute Mr Smit’s sentence to one of home detention.

Factual background

[3] The charges against Mr Smit are the result of two separate attacks on his former partner. The first occurred around 1 September 2012. Mr Smit’s partner was eight months pregnant at the time. She had taken issue with Mr Smit being out late at night drinking. He became angry, picked her up and threw her off the bed and on to the floor. He then kicked and punched her at least once causing her to suffer a black eye and a swollen lip.

[4] The second assault occurred on 1 November 2015 by which time the victim was separated from Mr Smit. She had dropped their two young children at his home. An argument broke out. She endeavoured to disengage by getting into her car. Mr Smit followed her, remonstrating loudly before grabbing her and throwing her to the ground. He then punched and kicked her a number of times about the face and the head. When she tried to escape, Mr Smit pushed her down and punched her again. At one point, after she had regained her feet, he grabbed her hair and slammed her face first into the ground. He then followed her as she began to crawl away, kicking and punching her to the back and torso. When she attempted to return to her car he removed her keys from the ignition before punching her again in the head. Finally he grabbed her by the throat and threw her on to the ground and then straddled her and punched her further. The victim’s younger sister who was 15 years old at the time was present and, somewhat heroically, attempted to intervene. Mr Smit

punched her in the head, knocking her to the ground. When she managed to get up and attempted to pull him off her sister, he punched her in the face. These assaults were witnessed by Mr Smit’s two young children…

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 Smit v Police

Details

AGLC: Smit v Police [2016] NZHC 2518
Case: [2016] NZHC 2518
Decision Date: 20 October 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Adrian Willem Smit appealed against his conviction and sentence for multiple charges including injuring with intent to injure, assault, and possession of firearms without a licence. Smit argued that the District Court Judge erred in not commuting his sentence of 20 months imprisonment to one of home detention. The appeal hinged on whether the Judge exercised his discretion correctly when considering the purposes and principles of sentencing, particularly the requirement to impose the least restrictive outcome appropriate.

The legal issues were whether the Judge erred in focusing on denunciation and deterrence to the exclusion of other relevant considerations, and whether the sentence imposed was appropriate. The appeal was governed by s 250(2) of the Criminal Procedure Act 2011, which mandates that an appeal can be allowed if there is an error in the sentence and a different sentence should be imposed. The Court of Appeal had previously established that an appeal against the refusal of home detention does not allow for a review of the merits but rather whether the Judge exercised his discretion correctly.

The Court found that the Judge had considered all relevant sentencing purposes and principles, including the gravity and seriousness of the offending, the defendant’s culpability, and mitigating factors such as remorse and rehabilitation. Although the Judge focused on the need for a strong deterrent sentence due to the serious nature of the domestic violence, he did not exclude other relevant considerations. The Court concluded that the Judge did not fall into appealable error by focusing on denunciation and deterrence, and the sentence of imprisonment was appropriate given the circumstances. Therefore, the appeal was dismissed.

Orders