Thomas v R - [2020] NZHC 2138

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-15

[2020] NZHC 2138

BETWEEN
NAVEEN THOMAS

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 August 2020

Counsel:

K R Pascoe for appellant A D Colley for respondent

Judgment:

21 August 2020

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Thomas) was sentenced by Judge Greig in the District Court at New Plymouth on 29 June 2020 to two years and three months’ imprisonment.1 The sentencing related to six convictions for domestic violence offending: one of common assault, three of male assaults female, one of assault with intent to injure, and one of attempting to pervert the course of justice. The last was laid as a representative charge.

[2] Mr Thomas has appealed, contending that the sentence imposed was manifestly excessive. In particular, the alleged errors are that the starting point in relation to the domestic assaults and the cumulative sentence on perverting the course of justice were too high, and that the sentencing Judge, having determined that the domestic violence was the lead offending, then imposed a greater sentence on the charge of attempting to pervert the course of justice.

1 R v Thomas [2020] NZDC 12149.

THOMAS v R [2020] NZHC 2138 [21 August 2020]

[3] In addition, Mr Thomas contends the Judge erred in failing to have proper regard to s 16 of the Sentencing Act 2002 (the Act), confused it with s 8(h) of the Act, and failed to take into account an offer of reparation for which regard should have been had under s 10 of the Act. Finally, it is submitted that the Judge failed to have proper regard to personal circumstances that resulted in an inadequate discount for the mitigating factors.

[4] The Crown opposes the appeal on the basis that the final sentence was well within range, and that none of the component steps in the sentencing involved an error which impacted on the reasonableness of the final outcome.

The facts

[5] The victim was Mr Thomas’s domestic partner. They had known each other for some 20 years in India, prior to separately moving to New Zealand during 2017. On the evening of 31 December 2018, Mr Thomas assaulted the victim after he became jealous of her conduct with other male friends in a bar. This led to an argument where he snatched her phone and hit her on her shoulder. That assault caused her to cry, which further angered Mr Thomas.

[6] Then on 12 May 2019, they argued at their home and Mr Thomas hit the victim on the arm with a closed fist. On that occasion the victim went to her car and locked the doors to protect herself, with Mr Thomas then apologising and asserting that he would never hurt her again.

[7] During a holiday in Taupō in late May 2019, Mr Thomas became angered by the content of a telephone conversation with a third party, which led to…

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 Thomas v R

Details

AGLC: Thomas v R [2020] NZHC 2138
Case: [2020] NZHC 2138
Decision Date: 21 August 2020

CaseChat Overview and Summary

The appeal concerns the sentence imposed by the District Court on Mr Thomas for multiple domestic violence offences and an attempt to pervert the course of justice. Mr Thomas argued that the sentence was manifestly excessive, primarily due to alleged errors in the starting point for the domestic violence charges, the handling of the attempt to pervert the course of justice charge, and the application of certain sections of the Sentencing Act 2002. The Crown opposed the appeal, asserting that the sentence was reasonable and within the appropriate range.

The Court addressed the alleged errors in the starting point for the domestic violence charges, noting that while domestic violence cases vary widely, the starting point adopted by the sentencing Judge was reasonable given the circumstances. The Court also found no error in the Judge's decision to treat the domestic violence charges as the lead offence, as the attempts to pervert the course of justice were derivative and likely to attract a cumulative sentence regardless. Regarding the starting point for the attempt to pervert the course of justice, the Court found that the Judge's decision was within the available range, considering the persistent and coercive nature of the offending.

Furthermore, the Court rejected the argument that the Judge had confused the considerations required by sections 16 and 8(h) of the Act. It found that the Judge had appropriately considered both the desirability of keeping offenders in the community and the particular circumstances of Mr Thomas, including the difficulties he would face in prison. The Court also upheld the Judge's decision not to take into account Mr Thomas's offer of reparation, finding that the Judge was entitled to be sceptical about the genuineness of the offer given Mr Thomas's previous conduct. Finally, the Court found no error in the six-month discount given for Mr Thomas's personal circumstances, considering his previous good character and the mitigating factors present in the case.

Given the above findings, the Court dismissed the appeal, concluding that the sentence imposed by the District Court was not manifestly excessive or inappropriate.

Orders