Sterjov v Police - [2015] NZHC 3103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-326 [2015] NZHC 3103

BETWEEN
SASE STERJOV

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 December 2015

Appearances:

P T Eastwood for the Appellant
M Hammer for the Respondent

Judgment:

7 December 2015

ORAL JUDGMENT OF MUIR J

Counsel:
P T Eastwood, Barrister, Auckland

Solicitors:
M Hammer, Meredith Connell, Auckland

SASE STERJOV v NEW ZEALAND POLICE [2015] NZHC 3103 [7 December 2015]

[1] Mr Sterjov was convicted on 9 October 2015 of one charge of assault with intent to injure.1 He was sentenced to 60 hours’ community work. He now appeals his conviction on the basis that the District Court Judge, Judge Paul, erred in his assessment of the gravity of the offending, and failed to give proper consideration to the economic consequences of a conviction and the victim’s views all of which the appellant says should have resulted in a discharge under s 106 of the Sentencing Act
2002.

The offending

[2] The offending arose out of an assault on Mr Sterjov’s wife. The extent of the assault was initially unclear, and the matter went to a disputed facts hearing before Judge Taumaunu. Mr Sterjov was sentenced on the basis of the facts as found at the disputed facts hearing and as reflected in an amended statement of facts.

[3] The facts as recorded in that amended statement are as follows. Mr Sterjov is a restaurateur. On the evening in question his wife was working at their restaurant. There was an argument between them while they were both in the kitchen, apparently relating to a mistake she had either with a pizza order or in preparing a pizza. Mr Sterjov pushed her outside holding her hair, into an alley behind the restaurant. He hit and kicked her. He dragged her behind a parked car, where he continued the assault. A member of the public who observed this protested loudly that Mr Sterjov should desist. Mr Sterjov stopped the assault while remonstrating with the member of the public about minding his own business. He then went back inside the restaurant. About 10 seconds later he emerged from the restaurant again and continued the assault. On this occasion he is described as karate kicking his wife in the body causing her to fall to the ground. He kicked and punched her at least once in the head. Throughout the whole incident, from inception to conclusion, he kicked and punched her at least 10 times. He then threw the car keys at her and she drove off.

[4] When approached by the Police the victim said that there had been no assault. She said there had been a fight but it was her fault. Mr Sterjov said it was just an

1 Crimes Act 1961, s 193. The maximum sentence is three years’ imprisonment.

argument and he denied hitting and kicking his wife. Mr Sterjov is aged 28 and has no previous convictions.

The sentence

[5] Judge Paul noted that premeditation was shown…

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.

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Details

Case: [2015] NZHC 3103
Decision Date: 7 December 2015

CaseChat Overview and Summary

The case of Sterjov v Police involved an appeal by Mr Sterjov against his conviction for assault with intent to injure. The conviction arose from an assault on his wife in which he pushed her, held her hair, hit and kicked her, and continued the assault after being interrupted by a passerby. The appellant appealed his conviction on the basis that the District Court Judge had erred in his assessment of the gravity of the offending and had failed to give proper consideration to the economic consequences of a conviction and the victim’s views, all of which should have resulted in a discharge under s 106 of the Sentencing Act 2002. The court considered the appellant's submissions that the facts did not support some of the Judge’s conclusions, particularly those as to the severity of the violence and the premeditation. The court also considered the argument that the consequences in terms of a potential loss of liquor licence or the inability of Mr Sterjov to obtain a bar manager’s certificate were wrongly assessed, and that insufficient weight was given to the desire of the appellant’s wife for him not to be convicted. The court dismissed the appeal, finding that the District Court Judge was correct in declining to grant a discharge without conviction under s 106 of the Sentencing Act 2002. The court found that the appellant had accurately assessed the severity of the offending and that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence. The court also found that the wishes of the victim did not diminish the court’s responsibility to hold the offender to account for domestic violence. The appeal was dismissed.

Orders