Swinburne v Police - [2024] NZHC 619

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-000004

[2024] NZHC 619

BETWEEN
JAMIE MICHAEL SWINBURNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 March 2024

Appearances:

K A Owen for Appellant

M B Brownlie for Respondent

Judgment:

20 March 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SWINBURNE v NEW ZEALAND POLICE [2024] NZHC 619 [20 March 2024]

Introduction

[1] On 16 January 2024, Jamie Swinburne was sentenced to two years one month’ imprisonment by Judge Harvey on charges of:1

(a)assault with intent to injure (x2);2

(b)threaten to kill (x2);3

(c)assault on a person in a family relationship;4

(d)resisting police;5

(e)disorderly behaviour;6 and

(f)wilful damage (x2).7

[2] Mr Swinburne appeals that sentence. He says the sentence is manifestly excessive as a consequence of the Judge failing to allow deductions for personal factors.

The offending

[3]Mr Swinburne had offended over two days in July 2023.

[4] At 12.00 pm on 23 July 2023, Mr Swinburne arrived on a bike at a residential address the victim had stayed overnight at with friends. The pair had until recently been in a relationship for two years. At Mr Swinburne’s demand, the victim came to the doorway of the house. He grabbed her by the hair and dragged her down the street for approximately 140 metres, telling her, “I’m going to kill you”. He then let go of

1      Police v Swinburne [2024] NZDC 711.
2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3      Section 306; maximum penalty seven years’ imprisonment.
4      Section 194A; maximum penalty two years’ imprisonment.
5      Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.
6      Section 3; maximum penalty three months’ imprisonment or a $2,000 fine.
7      Section 11(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.

her hair and they continued walking toward his address. While crossing a street, Mr Swinburne attempted to punch the victim in the face. He then walked ahead of her, pushing his bike and telling her to hurry up. After she made a comment to him, he threw his bike down, ran back and pushed her through a hedge and onto a concrete driveway before telling her to get up and keep walking.

[5] At 12.30 pm that day, police were alerted to the incident. Shortly after, Mr Swinburne was observed on foot nearby. When police spoke to Mr Swinburne, he reacted belligerently and aggressively, throwing his bike to the ground, clenching his fists and yelling. He told police to “fuck off” and not touch him. He refused to comply with police directions while police were trying to restrain him. He told police he would remember their faces and come after them.

[6] A Police Safety Order (PSO) was served on Mr Swinburne for a 7-day period (to expire at 2.00 pm…

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: [2024] NZHC 619
Decision Date: 20 March 2024

CaseChat Overview and Summary

Swinburne v Police [2024] NZHC 619 is an appeal against the sentence imposed on Jamie Swinburne for multiple charges including assault with intent to injure, threatening to kill, assault on a person in a family relationship, resisting police, disorderly behaviour, and wilful damage. The sentence was two years and one month's imprisonment. Swinburne argues the sentence was manifestly excessive due to the District Court's failure to properly account for personal factors that could have reduced the sentence. The central legal issue was whether the District Court had erred in the methodology of sentencing, which could render the sentence manifestly excessive.

The High Court found that while the District Court did not follow the orthodox methodology and articulate how the sentence was constructed, this did not necessarily mean the sentence was manifestly excessive. The focus of the appeal was on the sentence itself rather than the process used to arrive at it. The Court re-examined the components of the sentence and concluded that a starting point of around two years and ten months' imprisonment was appropriate, considering the gravity of the offences. The Court allowed for deductions for the guilty plea and personal background factors, but did not consider a deduction for remorse warranted. The Court held that the sentence of 25 months imprisonment was within the appropriate range and not manifestly excessive, dismissing the appeal.

Orders