Tout v Police - [2021] NZHC 2227

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000065

[2021] NZHC 2227

BETWEEN
DAMIEN CHARLES PHILLIP TOUT

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing: 27 August 2021 Via VMR

Appearances:

A C Trinder for Appellant

J A Lancaster for Respondent

Judgment:

31 August 2021

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 31 August 2021 at 2.30 pm

Registrar/Deputy Registrar Date:

TOUT v NEW ZEALAND POLICE [2021] NZHC 2227 [31 August 2021]

Introduction

[1] The appellant, Damien Tout, was sentenced to four years imprisonment by District Court Judge Kellar on 22 April 20121 for the following charges:

Charge

Section

Maximum Penalty

1

Injuring with intent to cause grievous bodily harm

Crimes Act 1961, s 189(1)

10 years’ imprisonment

2

Intentional damage

Crimes Act 1961, s 269(2)(a)

7 years’ imprisonment

3

Injuring with reckless disregard

Crimes A 1961, s 189(2)

5 years’ imprisonment

4

Assault with intent to injure

Crimes Act 1961, s 193

3 years’ imprisonment

5

Theft (over $1,000)

Crimes Act 1961, ss 219 & 223(b)

7 years’ imprisonment

6-9

Theft ($500-$1,000) x4

Crimes Act 1961, ss 219 & 223(c)

1 year’s imprisonment

10-12

Theft (under $500) x3

Crimes Act 1961, ss 219 & 223(d)

3 months’ imprisonment

[2] Mr Tout does not challenge the starting point adopted by the Judge but appeals the sentence on the basis that the Judge erred in the uplifts and discounts applied for personal factors.

Background facts

[3] The charges for violence and intentional damage arose on 21 October 2020, when Mr Tout was at his home address. He resided at the address with his girlfriend and three of the victims.

[4] Mr Tout’s housemates had left the address to purchase a vehicle in Ashburton. Mr Tout became angry that his girlfriend had not consulted him about it. He went into

1 Police v Tout [2021] NZDC 7563.

the kitchen and threw a microwave onto the floor, smashing it, tipped a fridge over on its side and smashed a vacuum cleaner. He put holes in the wall in the kitchen and hallway and gouged holes in the new kitchen table.

[5] The victims arrived home at about 9 pm, while Mr Tout was out. They were cleaning the kitchen when he arrived home. Mr Tout lunged at the first victim with a kitchen knife. The victim brought his right hand up to block the strike and suffered a small laceration to his hand. He and Mr Tout fell to the ground. The other victims tried to pull Mr Tout off while he continued to try to stab the first victim.

[6] The victims managed to pull the Mr Tout away, allowing the first victim to run from the house. Mr Tout turned on the others, waving the knife in a slashing motion and stabbing at them. One victim suffered a 15 cm long cut to the inside of her right forearm during this struggle.

[7] Mr Tout left the house and…

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 Tout v Police

Details

AGLC: Tout v Police [2021] NZHC 2227
Case: [2021] NZHC 2227
Decision Date: 31 August 2021

CaseChat Overview and Summary

The appellant, Damien Tout, appealed his four-year imprisonment sentence for charges including injuring with intent to cause grievous bodily harm, intentional damage, and theft. The appeal was heard in the High Court of New Zealand. The key legal issue was whether the District Court Judge erred in the uplifts and discounts applied for personal factors.

The court found that the starting point adopted by the Judge was within the appropriate range. However, the court considered that a starting point in the vicinity of four years would have been more appropriate for the lead charge of injuring with intent to cause grievous bodily harm. The court found that the uplifts for other violence charges and the dishonesty offending were within the range available to the Judge. The court also found the uplift for personal aggravating factors and the discount for personal mitigating factors were appropriate. The court concluded that the end sentence of four years could not be said to be manifestly excessive.

The appeal was dismissed. The court found that the sentence imposed in the District Court was not manifestly excessive and should be upheld.

Orders