Thomason v Police - [2016] NZHC 596

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2016-483-7 [2016] NZHC 596

BETWEEN
PIRI WAYNE THOMASON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 April 2016

Counsel:

D M Goodlet for Appellant
N A Refoy-Butler for Respondent

Judgment:

7 April 2016

JUDGMENT OF BROWN J

Introduction

[1] On 20 January 2016 the appellant pleaded guilty to a charge that he assaulted his partner with intent to injure her. In the District Court at Wanganui Judge A C Roberts imposed a sentence of 12 months’ imprisonment from which sentence the appellant now appeals.

[2] The circumstances of the offending are apparent from the following

paragraph of the Judge’s sentencing notes:

[2] The summary of facts I have read. Your relationship has extended over 18 years, the past seven years you and your victim have been married. The summary states that there have been 35 reported family violence incidents alerted to the police involving the same participants, you and your victim, all of that since the year 2000. There are children living under the same roof. Your partner had been diagnosed with bone cancer and more recently thyroid cancer. Eighteen months ago the thyroid cancer was removed. She has, however, significant scarring on her neck and upper chest. You, of course, were alert to these issues. Her breathing is compromised as it is. Her neck and throat are painful, the summary reads, most of

THOMASON v NZ POLICE [2016] NZHC 596 [7 April 2016]

the time. This was a late evening argument. Within the summary is the indication that she had disclosed to you sexual infidelity. The summary goes on to say she was eating her tea facing away from you, you came up behind her and grabbed her by the hair. You dispute that, I note at interview, you turned her around to face you. You then placed both hands around her neck and started to strangle her, applying so much pressure it compromised her breathing. She endeavoured to push you away.

The appeal

[3] A notice of general appeal was filed dated 22 March 2016 which stated that the grounds of the appeal would be set out in a memorandum of counsel to be filed. When I made enquiry of counsel at the hearing as to the whereabouts of that memorandum I was referred to the written submissions in support of the appeal dated 1 April 2016. Hence there is no document which succinctly states the grounds on which the appeal is brought.

[4] However the essence of the appellant’s complaint is that Judge Roberts imposed a sentence of imprisonment rather than a sentence of home detention. In fact, as the Department of Corrections report recorded, there was no suitable address available at the time and the report stated that, if the Court wished to impose an electronically monitored sentence, a remand would be required for the appellant to find suitable accommodation.

[5] Consequently it was Ms Goodlet’s argument that Judge Roberts should have made an order under…

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 Thomason v Police

Details

AGLC: Thomason v Police [2016] NZHC 596
Case: [2016] NZHC 596
Decision Date: 7 April 2016

CaseChat Overview and Summary

In this case, Piri Wayne Thomason appealed against a sentence of imprisonment imposed on him by Judge A C Roberts of the District Court at Wanganui. The appellant had pleaded guilty to assaulting his partner with intent to injure her. The appeal centred on the contention that Judge Roberts should have imposed a sentence of home detention instead of imprisonment. The key issue before the Court was whether the Judge had erred in exercising his sentencing discretion. The Court considered whether the Judge had applied an incorrect principle, given insufficient or excessive weight to a particular factor, or was plainly wrong in deciding that home detention was inappropriate.

The Court noted that the decision to impose a sentence of home detention was a discretionary one. The Court examined the principles established in previous cases, particularly emphasising the Court of Appeal’s formulation in May v May. The Court concluded that the Judge had clearly identified the factors that led him to favour a sentence of imprisonment, which included the seriousness of the assault, the history of domestic issues, and the appellant’s previous breaches of sentence. The Court found that the Judge had not given undue weight to any particular factor and had not failed to consider the principle of imposing the least restrictive outcome. Consequently, the Court was not persuaded that the sentencing Judge had erred in exercising his discretion.

The appeal was dismissed, and the sentence of 12 months’ imprisonment imposed by the District Court was upheld.

Orders