Thompson v Police

[2017] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2017-483-13
CRI 2017-483-14

CRI 2017-483-15 [2017] NZHC 3039

BETWEEN

HANNON BRENT THOMPSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 December 2017 (via AVL)
Counsel:	R J Leith for Appellant C B Wilkinson-Smith and C A Middleton for Respondent
Judgment:	7 December 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Thompson appeals a sentence of two years and one month’ imprisonment imposed for three offences:1

(a)       injuring with intent to injure; and

(b)      two offences of breach of protection order.

Facts

[2]      Mr Thompson became angry when his (most recent) partner returned to the house to collect things.  He approached the victim in a way that made her think she

1      New Zealand Police v Thompson [2017] NZDC 24861.

was in danger. She ran away but came back a short time later. This pattern continued during  the  course  of  which  Mr Thompson  punched  a  hole  in  a  bedroom  door. Eventually the victim got outside, pursued by Mr Thompson.  Mr Thompson picked up a wooden chair, chased the victim around the car, and eventually caught up with her.  He felled the victim with a blow to the back of the head.  She fell face forward onto the concrete causing damage to her face. The victim was hospitalised overnight.

[3]      Subsequent to this offence, a protection order was made in relation to the victim. Two months later Mr Thompson on the same day twice visited her address to talk to her. He says he was concerned about where she was intending to move to. He considered it unsafe.  After the first visit, the victim had messaged Mr Thompson telling him not to return and that he was unwelcome.  During the second visit, made despite the message, Mr Thompson became angry and police were called.

[4]      Over this same period a former partner of Mr Thompson, with whom he shares a son, obtained a protection order.  On successive days Mr Thompson breached the order by ringing the victim. The purpose seems to have been to get access to his son.

[5]      Mr Thompson is 30 years old with an extensive criminal record, albeit not one that has seen him ever sentenced to jail.  He has no history of domestic violence, and has not been the subject of a protection order previously.  The pre-sentence report draws a link between alcohol consumption and offending.  Mr Thompson appears to accept the need for help in this area, whilst denying it was a factor in the assault.  A notable  feature  of  Mr Thompson’s  record  is  a  large  number  of  breach  offences concerning community work and supervision. He also has four drink driving offences, albeit the last was in August 2015.

Sentencing

[6]      The Judge assessed the injuring offending as falling squarely within band two of R v Nuku.2  The Judge noted it was an attack to the head with a weapon. The victim

2      R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.

was vulnerable and there was a breach of trust.3    A starting point of two years’

imprisonment was taken.

[7]      The Judge then imposed two uplifts for the protection order breaches – three months’ and six months’. The breach in relation to the victim of the assault was viewed as particularly serious.  It was noted it also involved a breach of bail conditions.

[8]      A discount of 25 per cent for the guilty pleas was then imposed, leaving a sentence of two years and one month’ imprisonment.  It is to be noted the Judge also quashed nearly $11,000 of fines without any additional penalty.  The last payment made by Mr Thompson was in January 2001.  It seems that just as with conditions of community work, supervision and bail, Mr Thompson ignores the fines.

Appeal submissions

[9]      It is submitted the starting point for injuring with intent was too high given it was a single strike to the head and the weapon was a chair.

[10]     The total uplift of nine months’ for two breaches is submitted to be excessive. They were the first breaches by Mr Thompson and involved no incorrect conduct other than the contact. The contact with the assault victim was motivated by a desire to help, and the other breach by a wish to arrange contact to see his son.  Mr Thompson had not long been subject to such orders and accepts the wrongness of his conduct. He has now taken steps in the Family Court concerning access to his son.

[11]     Finally,  it  is  submitted  that  there  should  have  been  credit  for  personal mitigating factors, particularly remorse.  The pre-sentence report writer accepted the remorse was genuine.  Mr Thompson acknowledged the need for help with alcohol, and also had enrolled in an anger management course prior to sentencing.  He had

offered to participate in a restorative justice programme.

3      It is common ground on the appeal that no breach of trust is involved. The other three factors are self-evident and not disputed.

Decision

[12]     There is no merit in the challenge to a two year starting point for what was a shameful attack on a scared woman running around a car to avoid Mr Thompson who was then brandishing a chair. The act of hitting her in the back of the head such as to fell the victim carried real risks.

[13]     The total nine month uplift for the protection order breaches is more open to challenge.  Emphasis could be given to the fact that the orders were new, these were the first breaches and the conduct, at least to the mother of his child, was comparatively innocuous.4   Given these factors nine months’ is at least stern.

[14]     However, the view taken by the District Court was open to it if different emphasis is taken.  Two separate orders, both breached within a short time of being imposed by a man who has a history of ignoring court ordered restraints. The contact with the assault victim was particularly troubling, and any claim to good motivation fails in the face of the second visit. Mr Thompson was expressly told not to come and that he was not welcome. He did so anyway and then got angry, causing further alarm and distress.

[15]     As for personal mitigating factors, there was no uplift for offending against bail conditions, nor for the cancellation of substantial fines.  These factors more than offset any denied allowance for remorse.

[16]     The appeal is dismissed. Mr Leith addressed the Court on Mr Thompson’s job prospects but their relevance primarily arises if a non-custodial sentence were an

available option.

Simon France J

4      That is not to ignore that often this offending is part of a pattern, and the impact should not be assessed only by reference to the current act.  The victim impact statement here reflects the role of context.