The Queen v Gary William Olsen

[2001] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND CA 86/01

THE QUEEN

V

GARY WILLIAM OLSEN

Hearing:	16 July 2001
Coram:	Gault J
Panckhurst J Potter J
Appearances:	P D Williams for Appellant
M J Thomas for Crown
Judgment:	19 July 2001

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

1. At issue in this appeal is whether a sentence of three months periodic detention was clearly excessive or inappropriate.  The appellant was convicted following trial upon one charge of assault against the Crimes Act 1961.  On 16 March 2001 the trial Judge rejected a plea for a discharge without conviction and a recommendation for an order that the appellant come up for sentence if called upon.  Instead he concluded that the appropriate sentence was a short term of periodic detention.

2. The relevant events occurred on 26 July 2000.  The appellant and his partner, Ms Hewlett, operated a firewood yard in Dunedin.  They were in dispute with a Mr Gaspar concerning ownership of a log grapple which was attached to an excavator (owned by Mr Gaspar) and used at the yard.  Mr Gaspar wished to repossess the grapple.  Earlier in the day he called at the yard and had a heated discussion with Ms Hewlett.  An hour or so later he returned, accompanied by his brother (the complainant), and three other men.

3. In the meantime the grapple had been removed from the excavator and the excavator had been parked across a bridge so as to prevent access to the yard itself.  Undeterred, Mr Gaspar drove the excavator across the bridge and through secured access gates into the yard.  His brother, and the others, followed.  An altercation ensued.  Heated words were exchanged between the complainant and Ms Hewlett.  She indicated that the entire party were trespassers.  She was in possession of a telephone, with which the police were rung, and which was snatched from her grasp at one point.  The appellant was absent from the yard at the time the party first arrived, but returned during the incident and in time to witness part of the confrontation with his partner.

4. The events giving rise to the assault occurred shortly after the police came to the scene.  One of the constables concluded that the complainant represented a significant threat to the peace and focused upon restraining him.  While the complainant was so held the appellant approached, endeavoured to kick the complainant, and successfully struck him a single blow to the face.  This was a punch which landed above the eye and caused a laceration which required sutures.  The appellant was so out of control that the constable used a pepper spray in order to subdue him.

5. Arising out of the incident Mr Gaspar was charged with wilful damage of the yard gates and the appellant with assault.  The latter charge was defended on the basis of self defence.  The appellant maintained that the complainant was not held at the moment of the assault and, indeed, that he was on the attack leaving the appellant with no option but to defend himself.  Unsurprisingly, the jury preferred the complainant’s version, namely that he was held and unaware of the appellant’s intentions until after the blow was struck.  This version was supported by the constable.  Hence, self defence fell to the ground.

6. The sentencer, an experienced trial Judge, characterised the offending in this way:

   ... there was in my view, no excuse for what you did.  From the victim’s perspective this was very much a cheap shot on your part.  He was being held by the constable and would hardly have expected to have been struck by you.  The aggravating feature I suppose is that you did strike the victim right under the nose of the constable and the other aspect that was interesting was that you were still plainly out of control because he had to pepper spray you afterwards.  You can protest all you like but that is what the evidence says.

7. On this basis he concluded that neither “a deferred sentence” (an order to come up for sentence if called upon as recommended in the pre-sentence report), nor a discharge without conviction was appropriate.  Rather periodic detention was warranted, but a short term to reflect the provocative background to the incident.

8. In support of the appeal Ms Williams urged that the sentencing Judge gave insufficient weight to the background circumstances, namely that the party of which the complainant was one were trespassers and behaved in an aggressive manner.  Whilst accepting that the appellant lost control of himself counsel submitted this was to be seen as an isolated incident and could not to be divorced from its immediate background.  The appellant is 36 years of age and has no previous convictions for offences against the person.  His previous record was confined to driving convictions and some for dishonesty, but not of recent origin.

9. A second line of argument concerned the impact of the incident upon the appellant and his partner.  Their livelihood had been at stake and they both suffered personal after-effects as a result of the raid upon the yard.  Moreover, Ms Hewlett’s four children were in care and apparently the appellant’s conviction became a factor relevant to his future contact with them.  In summary, Ms Williams argued that the imposition of a penalty being the next level of punishment down the scale from imprisonment was not warranted in all the circumstances of this case.  She invited the substitution of a sentence of community service.

10. We are not persuaded of the appropriateness of that course.  The trial Judge was best placed to judge the appellant’s culpability.  He heard the evidence of the complainant, Ms Hewlett, the appellant, and of the arresting constable.  He reached an assessment concerning both the background and the appellant’s reaction to it.  We can find no basis to differ from those assessments.

11. A sentence of periodic detention was clearly within the available range of penalties for a Crimes Act assault of this kind.  It is simply not possible on appeal to conclude that the rejection of lesser alternatives and the imposition of a sentence of a three months periodic detention was either inappropriate or excessive.  Accordingly, the appeal is dismissed and the appellant is required to report at the Dunedin Periodic Detention Centre at 97 King Edward Street, South Dunedin on Saturday, 21 July 2001 at 9 am.

Solicitors:

Aspinall Joel Radford Bowler, Dunedin for Appellant

Crown Law Office, Wellington