Soper v Police - [2014] NZHC 2536

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000085 [2014] NZHC 2536

RICKY JAMES SOPER

v

NEW ZEALAND POLICE

Hearing: 14 October 2014

Appearances:

J Lucas for Appellant
C E Martyn for Crown

Judgment:

15 October 2014

JUDGMENT OF DUNNINGHAM J

[1] Mr Soper appeals a sentence of 21 months’ imprisonment imposed by Judge Strettell in the District Court on 5 August 2014 on one charge of common assault, and one charge of male assaults female. Both assaults were committed against Mr Soper’s former partner, and occurred on two different dates shortly after Mr Soper’s release from prison.

[2] The grounds of appeal are that the Judge:

(a) adopted a starting point that was too high;

(b) erred in not following the correct sentencing methodology; and

(c) failed to give sufficient credit for Mr Soper’s guilty pleas.

SOPER v NEW ZEALAND POLICE [2014] NZHC 2536 [15 October 2014]

[3] These errors cumulatively result in a sentence that Mr Soper says was manifestly excessive.

The offending

[4] The offending occurred shortly after Mr Soper was released from prison where he was serving a sentence for assaulting the same victim as in this bout of offending.

[5] The victim was recovering from injuries she received as a result of a car accident she had shortly before the offending. She had a hip injury which meant she needed crutches to assist her walking and had a metal plate installed to remedy a broken eye socket.

[6] The first assault occurred on 29 April 2014 at the victim’s house when both she and Mr Soper were drinking heavily. He became angry at the victim, straddled her and pushed down on her chest with his hands causing her pain. He then clenched his fist and said he would punch the victim. Two days later, on 1 May, the victim arrived home to find Mr Soper intoxicated. She threatened to call the police and Mr Soper became angry. He straddled the victim who was on her bed and punched her in the face three times. She received swelling and bruising to her left and right cheeks, her forehead and her hand with which she deflected a fourth punch.

[7] Mr Soper has an extensive and persistent history of offending. He has

54 convictions for dishonesty offending, 14 for breaches of bail or release conditions and 14 driving related convictions. He also has four male assaults female convictions, four common assault convictions, one conviction for assault with intent to injure, one for aggravated assault and one for assaulting a police officer.

[8] He has severe alcohol and drug dependence problems. The psychological assessment and pre-sentence report provided to the Court in advance of sentencing outlined a concerning pattern of increasing frequency and severity of violence related offences, a “borderline” range of cognitive functioning and a very high risk of reoffending due to substance abuse. It further records that access to a supported

residential rehabilitation facility upon release “would appear to be the only way to increase…

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 Soper v Police

Details

AGLC: Soper v Police [2014] NZHC 2536
Case: [2014] NZHC 2536
Decision Date: 15 October 2014

CaseChat Overview and Summary

Mr Soper appealed a 21-month imprisonment sentence imposed by the District Court on charges of common assault and male assaults female, both committed against his former partner. The appeal contested the starting point of the sentence, the methodology used by the sentencing judge, and the discount given for guilty pleas. The High Court found that the District Court had erred in applying the uplift for previous convictions before the discount for the guilty pleas and that the starting point was too high. The Court substituted a sentence of 16 and a half months' imprisonment.

The legal issues before the Court were whether the District Court judge had erred in setting a starting point for sentencing, in following the correct sentencing methodology, and in discounting the sentence for the guilty pleas. The Court considered the appropriate starting point for the male assaults female charge and whether the discount for the guilty pleas was sufficient. The Court found that the starting point was too high and the discount for the guilty pleas was not sufficient, leading to a manifestly excessive sentence.

Orders