Townsend v Police - [2015] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-8 [2015] NZHC 1722

BETWEEN
SAMUEL MAURUS TOWNSEND

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 July 2015

Counsel:

P L Murray for Appellant
D R Davies for Respondent

Judgment:

27 July 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3.30 pm on the 27th day of July 2015

Solicitors: P L Murray, Barrister & Solicitor, Palmerston North, for Appellant
Crown Solicitor, Palmerston North, for Respondent

TOWNSEND v NEW ZEALAND POLICE [2015] NZHC 1722 [27 July 2015]

[1] The appellant pleaded guilty to one count of assaulting a Police officer with a weapon. He was sentenced by Judge Bouchier in the District Court at Palmerston North on 9 June 2015 to 11 months imprisonment.1

[2] He appeals against his sentence. He submits that the end sentence of imprisonment was manifestly excessive because:

(a) the starting point of 15 months adopted by the Judge was excessive;

(b)no credit was given for personal mitigating features apart from the guilty plea.

(c) the Judge erred in not imposing a sentence of home detention.

[3] The appellant was intoxicated at home and became involved in an argument with his partner. A neighbour approached the couple and the appellant yelled “[h]ave you called the Cops? I’m going to waste all of them when they get there.” The Police were called. The appellant emerged from a shed at the back of the carport holding two red plastic petrol containers. He poured liquid from them in front of him and along a fence line. He said that he was going to “blow the place up”. A Police dog handler and other officers arrived shortly thereafter.

[4] The appellant told the constable to “get away” and “keep back”. He knelt down and retrieved a clear glass bottle with a paper wick extending from it. He threatened to light the paper with a lighter in his hand, gestured that he would throw it at the constable, and did not lower it when told to do so. On at least one occasion, he lit the wick but it was then extinguished either by the appellant blowing on it, or by the wind. The constable believed the bottle to be a Molotov cocktail. He pepper sprayed the appellant to little effect. At one point the appellant drew the bottle back as though he was about to throw it. The wick was not lit. A dog was deployed. When it engaged with the appellant, the bottle was dislodged from his hand and hit
the corner of a trailer behind which the constable was seeking cover. The appellant

1 Police v Townsend [2015] NZDC 10781.

received dog bites on his arm and leg. A scene examination did not establish the presence of petrol.

[5] In fixing a starting point for the offending, the Judge identified the aggravating factors in these terms:2

[22] In terms of the aggravating features, looking at the well known case of

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 Townsend v Police

Details

AGLC: Townsend v Police [2015] NZHC 1722
Case: [2015] NZHC 1722
Decision Date: 27 July 2015

CaseChat Overview and Summary

Samuel Maurus Townsend appealed against his sentence for assaulting a Police officer with a weapon, arguing that the end sentence of imprisonment was manifestly excessive. The District Court had sentenced him to 11 months imprisonment after he pleaded guilty to the charge. The appellant submitted that the starting point of 15 months adopted by the Judge was excessive, no credit was given for personal mitigating features apart from the guilty plea, and the Judge erred in not imposing a sentence of home detention. The appellant was intoxicated at home and became involved in an argument with his partner, which escalated when he made threats to police officers with a Molotov cocktail. The Police were called and the appellant was eventually pepper sprayed and bitten by a dog when he was engaged by it. The Judge identified the aggravating features of the offending, including the threats made to the police and neighbours, the use of a potentially lethal or serious weapon, and the attack on a police officer. The Judge adopted a 15 month starting point which she considered "lenient in the circumstances". The court assessed the seriousness of the offending and considered whether the starting point was within the available range. The court also considered whether some credit should have been given for personal mitigating circumstances, apart from the four months deduction given for the guilty plea. The court concluded that the Judge’s assessment of the appellant’s personal circumstances as not justifying a discount was a view properly open to her in the circumstances. Finally, the court considered whether home detention should have been imposed. The court held that the Judge did not err in refusing home detention, as the gravity of the offending and the need for the sentence to reflect that was an appropriate consideration, so long as deterrence was not given complete priority without regard to any of the countervailing purposes of sentence. The court dismissed the appeal.

Orders