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,…

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 Smith v Police

Details

AGLC: Smith v Police [2013] NZHC 3406
Case: [2013] NZHC 3406
Decision Date: 16 December 2013

CaseChat Overview and Summary

In Smith v Police, the appellant, Mr Edward Gordon Smith, appealed against his sentence imposed by Judge Weir. Mr Smith pleaded guilty to multiple charges including assaulting his female partner, common assault, wilful damage, and driving with excess breath alcohol. The Judge sentenced Mr Smith to 12 months imprisonment for the charges other than driving with excess breath alcohol, and a cumulative term of three months imprisonment for the latter charge. Mr Smith argued that the Judge should have imposed a sentence of home detention instead of imprisonment.

The court had to consider whether the Judge erred in not imposing a sentence of home detention, given Mr Smith's history of alcohol-related offending and his previous sentence of home detention in 2009. The court noted that Mr Smith had not taken advantage of the rehabilitative opportunities offered to him during his previous sentence. The court also considered that Mr Smith's recent breaches of bail, involving alcohol, justified the imposition of imprisonment to protect society and his partner.

The court held that the Judge was justified in declining to impose a sentence of home detention, given Mr Smith's failure to take advantage of the previous opportunity for rehabilitation and his continued alcohol-related offending. The court found that Mr Smith must now take responsibility for his rehabilitation himself. The appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentences imposed by Judge Weir were upheld. Mr Smith's sentences of 12 months imprisonment for the charges other than driving with excess breath alcohol, and a cumulative term of three months imprisonment for the latter charge, remained in place.

Orders