Swan v Police - [2014] NZHC 69

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000058 [2014] NZHC 69

BETWEEN IVAN RICHARD SWAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2014

Appearances: J S Gurnick for Appellant
L Dunn for Respondent

Judgment: 5 February 2014

JUDGMENT OF COURTNEY J

SWAN v NZ POLICE [2014] NZHC 69 [5 February 2014]

Introduction

[1] Ivan Richard Swan pleaded guilty to three charges arising from separate incidents of domestic violence. They were male assaults female in February 2012, followed by assault on a child in June 2012 and wounding with reckless disregard in February 2013. He appeals the sentence imposed on him by Judge Connell of two years and one month’s imprisonment.1

[2] The grounds of the appeal are that the sentence is manifestly excessive by reason of the Judge taking starting points that were too high, failing to address the issue of totality and failing to give sufficient discount for mitigating factors.

Were the starting points too high?

[3] The Judge took the charge of wounding with reckless disregard as the lead offence. This incident occurred when Mr Swan was coming down off a methamphetamine-induced high. He became angry with his partner and threw a pair of scissors at her. It was not asserted that there was a deliberate aim but the scissors hit the victim’s head resulting in a laceration to the back of the head which bled heavily. Although the Judge did not go into details, he referred to the injury as one that caused problems later in terms of its treatment and care.

[4] In determining the appropriate starting point the Judge considered authorities provided by Mr Swan’s counsel, Mr Gurnick, including R v Tuwairua2 in which the starting point had been two years eight months. The Judge accepted that the offending was less serious than the circumstances of Tuwairua and took a starting point of two years two months.

[5] Mr Gurnick submitted that the present case was much less serious than both Tuwairua and also two other recent cases involving the same charge, R v Grimshaw- Jones3 and Middlemiss v Police.4 Mr Gurnick pointed out that Grimshaw-Jones
involved two separate charges of wounding with reckless disregard, which attracted

1      R v Swan DC Hamilton CRI-2013-019-001528, 27 September 2013.
2      R v Tuwairua [2009] NZCA 495.
3      R v Grimshaw-Jones [2010] NZCA 490.
4      Middlemiss v Police HC Dunedin CRI-2009-412-38, 11 February 2010.

concurrent sentences for which starting points of two years eight months was taken. In Middlemiss a starting point of three years had been taken for serious injury inflicted with a knife. He submitted that the much greater seriousness of the offending in these cases suggested a difference of eight to ten months between the starting points in these cases and the present case was insufficient. He submitted that it should be closer to 15-18 months.

[6] Ms Dunn resisted the suggestion that the starting point was too high, submitting that the assessment of the seriousness of…

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 Swan v Police

Details

AGLC: Swan v Police [2014] NZHC 69
Case: [2014] NZHC 69
Decision Date: 5 February 2014

CaseChat Overview and Summary

Ivan Richard Swan appealed against the sentence imposed on him by the District Court, which was two years and one month's imprisonment for three charges of domestic violence. The Court of Appeal reviewed the appeal, focusing on whether the sentence was manifestly excessive due to the starting points being too high, the issue of totality not being addressed, and insufficient discount for mitigating factors. The Court noted that while the starting point for the wounding charge was appropriately set at 18 months instead of the 2 years 2 months initially determined, the Judge failed to adequately consider the totality principle and the appropriate discount for mitigating factors. The Court found that the discount for the guilty plea was appropriately set, but a higher discount for the clean record would have been warranted. As a result, the Court substituted a sentence of 18 months imprisonment, acknowledging that the original sentence was disproportionate to the seriousness of the overall offending. The appeal against the refusal to grant leave to apply for home detention was dismissed.

Orders