Vince v R - [2017] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000045 [2017] NZHC 2358

BETWEEN
PETER JOHN VINCE

Appellant

AND

THE CROWN Respondent

Hearing: 11 September 2017

Appearances:

A Dawson and B Stevenson for the Appellant
C E R Power for the Crown

Judgment:

27 September 2017

JUDGMENT OF NATION J

[1] Mr Vince had trouble accepting that a woman he had been in a relationship with for some seven months wished to end that relationship.

[2] This woman (the victim) told him that she wanted him to remove his stereo and some personal items from her home. On 28 January 2017 Mr Vince went to her home in the morning. He said he was going to take his stereo away but said he would only do so if she went out with him in Dunedin that night. She eventually relented and agreed to this.

[3] The victim is deaf, struggles to communicate when not facing people, has previously suffered a stroke and has movement problems relating to that. She went to her bedroom and was facing the mirror. Mr Vince came up behind her, grabbed her around the waist and tried to hug her. She resisted. He threw her on the bed and
tried to get on top of her, holding her arms above her head for a time and leaving her

VINCE v R [2017] NZHC 2358 [27 September 2017]

with minor bruising to her lower forearms. She struggled and kept telling him to get off her. After a short time, she stopped struggling and Mr Vince did as she had asked. He still wanted her to go out with him that night. She agreed if he took the stereo. When he had left, she contacted her sister and went to stay with the sister for a few days.

[4] Seven days later, Mr Vince accessed the victim’s Facebook account from his computer without her consent, using her password. From that account, he sent messages to his own Facebook account. The messages were worded as if they had been written by the victim, saying that she had attacked Mr Vince with a knife and caused her own bruises. Mr Vince tried to make it look as if the victim was implicating herself, had made up the assault and had lied to Police.

[5] Mr Vince pleaded guilty to charges of male assaults female and attempting to pervert the course of justice. On the attempting to pervert the course of justice charge, he was sentenced to 22 months’ imprisonment. On the charge of male assaults female, he was sentenced to a concurrent two month sentence of imprisonment. The Judge also made a final protection order for the benefit of the victim.1

[6] On this appeal, Mr Vince says he should have been sentenced to home detention.

Principles on appeal

[7] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s…

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 Vince v R

Details

AGLC: Vince v R [2017] NZHC 2358
Case: [2017] NZHC 2358
Decision Date: 27 September 2017

CaseChat Overview and Summary

The appeal in Vince v R was brought by the appellant, Mr Vince, against his sentence for charges of male assaults female and attempting to pervert the course of justice. The sentencing Judge had imposed a sentence of 22 months’ imprisonment for the charge of attempting to pervert the course of justice and a concurrent two month sentence for the male assaults female charge. The Judge also made a final protection order for the benefit of the victim. Mr Vince sought to appeal the sentence, arguing that he should have been sentenced to home detention. The Court was required to determine whether there had been an error in the imposition of the sentence, and if so, whether a different sentence should be imposed. The Court noted that the sentence of imprisonment should ordinarily be the outcome in relation to a charge of attempting to pervert the course of justice, but that this was a discretionary decision. The Court found that the sentencing Judge had not sufficiently considered the availability of home detention as a discrete sentence and that there had been an error in the sentencing process. The Court concluded that, in light of the circumstances of the offending and Mr Vince’s personal circumstances, he should have been sentenced to home detention. The appeal against sentence was allowed and Mr Vince was sentenced to nine months’ home detention, with conditions including attendance at a violence prevention programme and any other counselling or treatment as directed by a probation officer. The protection order for the benefit of the victim was confirmed.

Orders