Swinton v Police - [2014] NZHC 298

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2014-463-000004 [2014] NZHC 298

HENARE RAUKOKORE SWINTON

v

NEW ZEALAND POLICE

Hearing: 26 February 2014

Appearances:

W Te Are for the Appellant
N Tahana for the Crown

Judgment:

26 February 2014

[ORAL] JUDGMENT OF WYLIE J

SWINTON v POLICE [2014] NZHC 298 [26 February 2014]

Introduction

[1] The appellant, Mr Swinton, appeals a sentence imposed on him by Judge J J Weir in the District Court at Rotorua on 16 January 2014.

[2] Judge Weir imposed an end sentence of six months’ imprisonment on a charge of assault under the Summary Offences Act 1981, and concurrent sentences of two months’ imprisonment on two additional charges of wilful damage, also under the Summary Proceedings Act.

Background Facts

[3] Mr Swinton and the victim, a Ms Slater, had been in a long-term relationship for some eight years. They have one child together. Some two weeks prior to the events which are the subject of the charges, the relationship came to an end.

[4] On 18 November 2013, Ms Slater was sitting in the lounge at her property.

Her and Mr Swinton’s child was present. So was a friend, a Ms Harvey.

[5] Mr Swinton arrived at the address. He was agitated. Ms Slater challenged him, and Mr Swinton responded with a barrage of verbal abuse and obscene language. He spat at Ms Slater and his saliva struck her directly in the face. He then picked up his two year-old son and continued to verbally abuse Ms Slater. The child became scared.

[6] Mr Swinton spat at Ms Slater on two further occasions. On both occasions, he hit her in the face. She tried to reach out for the child. Mr Swinton grabbed her right arm and twisted it behind her back while still holding onto the child. He tried to stamp on Ms Slater’s toes. He was wearing heavy work-style boots and Ms Slater was bare footed. He did stamp on her toes approximately four times.

[7] Mr Swinton then turned his attention to Ms Harvey. He verbally abused her and used profane language.

[8] Eventually, Mr Swinton handed over the child and left the room. While he was in Ms Slater’s garage, he picked up a large and heavy brake disc and threw it at the wall, smashing a hole in the wall lining.

[9] Mr Swinton then left the address in his car. When he went past Ms Harvey’s vehicle, he stopped. He got out of his vehicle and forcefully kicked Ms Harvey’s vehicle two or three times with his boots. This caused two large dents to the passenger side door panels. Mr Swinton then left the area.

[10] Ms Slater received no injuries as a result of the assault.

[11] When Mr Swinton was spoken to by the police, he admitted the facts as outlined above. He stated that he had offended because he was angry at his ex-partner.

[12] Mr Swinton entered a guilty plea at the first…

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 Swinton v Police

Details

AGLC: Swinton v Police [2014] NZHC 298
Case: [2014] NZHC 298
Decision Date: 26 February 2014

CaseChat Overview and Summary

The High Court was asked to review the sentence imposed on Mr Swinton by Judge J J Weir in the Rotorua District Court. Mr Swinton had been found guilty of assault and two counts of wilful damage under the Summary Offences Act 1981. He was sentenced to six months' imprisonment for the assault and two months' imprisonment for each wilful damage charge, to be served concurrently. The appeal was brought by Mr Swinton on the basis that the sentence was manifestly excessive and wrong in principle, particularly given the absence of any injuries to the victim. The Crown, represented by Ms Tahana, did not contest the appeal and agreed that the starting point of six months was excessive.

The court considered whether the sentence imposed was an error in law or principle, and whether it was manifestly excessive. The court noted that while the maximum penalty for assault under the Summary Offences Act is six months' imprisonment, the precedents suggest that the typical sentence for medium-gravity assaults is lower, often ranging between two to three months. The court also considered the aggravating factors present in this case, such as the domestic context, the presence of the child, and the offender's criminal history. Despite these factors, the court found that the assault itself was relatively minor and that the six-month starting point was excessive.

The court determined that an appropriate sentence for the assault charge would be three months' imprisonment. Considering the two wilful damage charges and the offender's criminal history, the court applied uplifts of two months and one month, respectively. Taking into account Mr Swinton's guilty plea, which entitled him to a 25% reduction in his sentence, the court set aside the original sentence and imposed a new sentence of four months and two weeks' imprisonment for the assault charge, with two months' imprisonment for each wilful damage charge, to be served concurrently. The court also directed that standard release conditions and special conditions, including psychological assessment and completion of the Tikanga Māori Programme, apply for six months after the sentence expiry date.

Orders