Smith v Police

[2013] NZHC 3406

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-00086 [2013] NZHC 3406

BETWEEN  EDWARD GORDON SMITH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 December 2013

Appearances:           G Burt for Appellant

N Tahana for Respondent

Judgment:                16 December 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

SMITH v NEW ZEALAND POLICE [2013] NZHC 3406 [16 December 2013]

[1]      Mr Smith pleaded guilty to charges of assaulting his female partner, common assault, wilful damage and driving with excess breath alcohol.  On 2 October 2013, Judge Weir sentenced Mr Smith to an effective term of 12 months imprisonment on the charges other than that of driving with excess breath alcohol.1   On that charge, he sentenced Mr Smith to a cumulative term of three months imprisonment.

[2]      Mr Smith appeals against sentence.  He contends that the Judge ought to have imposed the lesser sentence of home detention.

Background

[3]      The charge of common assault arises out of an incident in which, after a heavy drinking session with three associates, Mr Smith punched and kicked a victim whom he and his associates had encountered whilst walking along the street late at night.  The incident occurred after Mr Smith and his associates had been involved in a verbal altercation with other persons present at the victim’s house.  This escalated into violence when the victim tried to get Mr Smith and his associates to leave the address.  The victim received minor injuries that did not require medical assistance. Mr Smith maintained that he was trying to stop the incident, and was not one of the protagonists.

[4]      The most serious charges were those of assaulting his female partner and causing wilful damage.  These were laid as a result of an incident that occurred on

25 June 2013.  At that time, Mr Smith was at his home in Tokoroa with his partner and their young child.   His partner was residing in Auckland at this time, but had travelled to Tokoroa and took the opportunity to visit Mr Smith.   Mr Smith was intoxicated, and an argument ensued.   This led to a serious incident in which Mr Smith picked up his partner’s baby, who was in a bassinet.   Whilst holding the bassinet in his left hand, he then began pretending to hit his partner by swinging his fist at her but not making contact. After he realised that his partner was not scared of him, Mr Smith struck her a number of backhanded blows on her face.  As he did so,

he said “I know how not to make you bruise”.

1      New Zealand Police v Smith DC Tokoroa CRI-2013-077-000642, 2 October 2013.

[5]      Mr Smith’s partner begged him to put the bassinet down, but he refused to do so.   Eventually his partner fell sideways to the floor of the lounge after receiving another backhanded blow to her face.  When she got back up, Mr Smith kicked her on the upper left thigh and this caused her to fall over again.   He then put the bassinet down, and walked over to where his partner was kneeling on a mattress on the floor.  He grabbed his partner by the hair and swung her over the lounge floor, pulling her head down and moving it from side to side.  When he eventually let go of his partner, she lay curled on the floor crying.  Eventually, however, she got up and went to get her cellphone from a charger in the lounge.   Mr Smith grabbed the cellphone off the victim, and threw it into the burning fireplace.  A short time later, he  tried  to  remove  the  cellphone  from  the  fireplace,  but  it  was  in  a  damaged condition.

[6]      The charge of driving with excess breath alcohol arose after Mr Smith was found  driving  in  Tokoroa  on  19  July  2013.    Evidential  breath  test  procedures revealed that his breath contained 715 micrograms of alcohol per litre of breath. This was the fourth occasion on which Mr Smith had driven with excess breath alcohol. The most recent conviction on this charge was in September 2011.

The sentence

[7]      The Judge took a starting point of 12 months imprisonment on the lead charge of assault on a female.  He applied an uplift of four months to reflect previous convictions for similar offending, thereby producing an end sentence of 16 months imprisonment before taking account of mitigating factors.   The Judge reduced the sentence by four months to reflect guilty pleas, thereby reaching an end sentence of

12 months imprisonment.  The Judge imposed a concurrent sentence of one month’s

imprisonment on the charge of wilful damage.

[8]      The Judge selected a starting point of four months imprisonment on the charge with driving with excess breath alcohol.  He reduced that by one month to reflect Mr Smith’s guilty plea, thereby producing the cumulative end sentence of three months imprisonment on that charge.

The appeal

[9]      Counsel  for  Mr  Smith  submits  that  the  Judge  erred  when  he  failed  to adequately consider  whether  Mr  Smith  should  be  sentenced  to  home  detention. Counsel could not argue that the Judge failed to consider the possibility of home detention, because the Judge expressly adverted to that issue.   He considered that such a sentence was “entirely out of the question”, bearing in mind Mr Smith’s previous history and bearing in mind his attitude to women.

[10]     The Judge was satisfied that the only realistic sentence that could be imposed on the present charges was one of imprisonment.  In reaching that view, the Judge was influenced by the fact that Mr Smith has recently breached his bail on several occasions.   On each of these, alcohol had been involved.   The Judge therefore considered that society needed to be protected from Mr Smith, as did his partner.

[11]     Counsel for Mr Smith submitted that the root cause of Mr Smith’s offending is to be found in the issues that he obviously has with alcohol.  Counsel emphasised that Mr Smith needed to receive a sentence that adequately addressed those issues, and  that  a sentence of  15  months  imprisonment  would  not  achieve that  object. Rather, it would simply result in Mr Smith being released into the community after serving seven and a half months of his sentence.  At that point he is likely to offend again, because his underlying issues involving alcohol will not have been addressed.

Decision

[12]     This submission needs to be viewed in context.   One of the factors that influenced the Judge in selecting a sentence of imprisonment was the fact that Mr Smith has already received a sentence of home detention for earlier offending against this then partner in 2009.

[13]     I  have  had  the  benefit  of  reading  the  sentencing  notes  relating  to  that offending, and consider that it was offending of a very similar nature to that which led to the present charges.  On that occasion Mr Smith initially received a sentence of two years four months imprisonment on a charge of wounding his then partner with intent to cause grievous bodily harm.   On appeal, Andrews J  reduced the

sentence  to  one  of  nine  months  home  detention.2    Her  Honour  held  that  an appropriate sentence would have been 12 months home detention.  She reduced that sentence by three months because Mr Smith had been in custody for a period on remand, and had also served part of the custodial sentence initially imposed.

[14]     Importantly, however, one of the factors that influenced Andrews J was a submission on Mr Smith’s behalf that the pre-sentence report identified him as being at low risk of reoffending, and that Mr Smith was motivated to attend counselling and any other programme that might assist in his rehabilitation.   Importantly, too, counsel  for Mr Smith had  argued  that  Mr Smith’s  offending could  properly be regarded as being out of character because he had never offended in such a manner in the past.

[15]     Andrews J noted that Mr Smith had voluntarily started to receive counselling very shortly after the offending occurred, and before charges were laid against him. As in the present case, he also retained the support of his victim.  In imposing the sentence of home detention, Andrews J directed that Mr Smith was to attend any rehabilitative programme that might address anger management and alcohol-related issues.

[16]     I take the view that Mr Smith has already had the benefit on one occasion of receiving a non-custodial sentence designed to provide him with rehabilitative assistance in respect of the issues that he obviously has in relation to alcohol.  He has obviously not sought to take advantage of such measures as may have been offered to him on that occasion.  In addition, Mr Smith has reoffended on several occasions since his release from the sentence of home detention that Andrews J imposed.  He has been convicted on charges of driving with excess breath alcohol, driving whilst disqualified, threatening behaviour and wilful damage.   All of this offending was associated with the consumption of alcohol.

[17]     I therefore consider the Judge was justified in declining to impose a sentence of home detention.  Mr Smith must now accept that his rehabilitation is in his own

hands.   If he is truly motivated to address his alcohol-related issues, he needs to

2      Smith v New Zealand Police HC Rotorua CRI-2009-463-000110, 18 December 2009.

address them himself.  It would not have been appropriate, in my view, for the Judge to have given Mr Smith a second chance when he was so clearly not minded to avail himself of the opportunity that Andrews J offered him in 2009.

Result

[18]     For these reasons I am satisfied the Judge did not err when he refused to impose  another  sentence  of  home  detention.    The  appeal  against  sentence  is

accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel: G Burt