W v Police HC Nelson CRI 2005-442-5

[2005] NZHC 48

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2005-442-000005

CRI 2005-442-000006

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 September 2005 (Heard at Christchurch)

Appearances: C M Yardley for Appellant

T J Gilbert for Respondent

Judgment:      15 September 2005

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

[1]       W      appeals against an effective sentence of 21 months imprisonment imposed upon her for charges of assault, theft, assault with intent to injure, unlawful assembly, and intimidation with intent to frighten.  She also appeals against the refusal of the learned District Court Judge to grant her leave to apply for home detention.

[2]      The theft charge related to a petrol station.  The assault was on a taxi driver. It was unprovoked and it is clear from the photograph of the victim it was a serious

W  V POLICE HC NEL CRI 2005-442-000005  15 September 2005

assault.  The other three charges arise from an incident that occurred at a public toilet with blatant, and serious, racial overtones.

[3]      A Chinese woman was using this toilet.  She was confronted by the Appellant and her companions.  A rubbish bin was thrown over her, bottles were thrown into the toilet cubicle.  When she left the toilet cubicle she was punched five or six times by the Appellant while being held by her companions.  Alcohol was tipped over her. Racial abuse was directed at her.  The racial attitudes of this young lady were further demonstrated to the probation officer when he interviewed her when preparing a report.

[4]      The Judge determined that the appropriate sentence for the assault with intent to injure was 15 months imprisonment.  On the other offences arising from that she was sentenced to two months on the unlawful assembly and two months on the intimidation with intent to frighten.   On the theft charge she was convicted and discharged plus reparation.  On the assault on the taxi driver a sentence of six months imprisonment was imposed, that to be served cumulatively giving the 21 month sentence.

[5]      It is argued on behalf of this young lady that such a sentence was manifestly excessive.  It is said that the Judge failed to give an adequate allowance for the guilty plea and that in imposing a cumulative sentence he failed to step back and apply the totality principle as required by the Sentencing Act.

[6]      The complaint in relation to the guilty plea is that the reduction allowed was only one of 20%.  As the Court of Appeal has said on a number of occasions, and this Court has said as well, calculations of allowances for guilty pleas are not an exact science.  It is not uncommon for an allowance of one third to be made in cases of early guilty pleas.  Indeed, it could be said that has almost acquired the status of a “rule of thumb”.  However, a Judge is not obliged to unthinkingly apply one third in circumstances such as this where there were serious aggravating factors, not least the racial overtones that I have mentioned.  They are bad enough in themselves.  The young woman in question was in fact a New Zealander, as much a New Zealander as this Appellant.

[7]      The Crown have referred to a decision of Tipping J on an appeal where there was a two year sentence upheld.   The Crown accepts there is no tariff, and they accept that the particular case of Gracey v Police (HC Christchurch, AP 74/95,

6/4/95) they referred to involved more serious injury and there was a not guilty plea. It is also to be noted further that is a decision from some 10 years ago.  Violence has continued to escalate within our communities and sentencing for violent offending has continued to harden over that 10 year period.

[8]      There has been nothing put before me to suggest that a sentence of 15 months imprisonment on the most serious of these charges is manifestly excessive.

[9]      In relation to the assault, although it was a common assault charge it was a serious one, which was unprovoked.  The extent of the violence is made plain from the photograph attached to the victim impact statement.  The sentence in itself again is appropriate.

[10]     Looking back at the totality of this young woman’s offending, in my view it is impossible to suggest a sentence of 21 months imprisonment, while stern, is manifestly excessive.  The appeal against sentence is dismissed.

[11]     In relation to home detention, the Judge unfortunately gave no reasons as to why he was declining home detention.  This young woman is aged 18 and has had a difficult background.  She has offended regularly over the last 12 months, escalating to this, her first trip to prison.  Quite obviously, if her offending continues she will make many more trips to prison.

[12]     The Court is required to take into account when considering home detention under s97 the nature and the seriousness of the offence.  Here, quite clearly, it was serious.   Also, the circumstances and background of the offender and the relevant matters in the victim impact statements. I have had the advantage of seeing those statements and having read them.

[13]     Mr Gilbert, on behalf of the Crown, rightly points to the fact that this was a racially motivated attack and that racial attitude has continued by this Appellant.

[14]     However, she is aged 18.   She has never been in prison before.   She has difficulties,  not  entirely of  her own  making,  that  possibly can  be  addressed  by treatment programmes.  It is also apparent that her mother is finally clean of drugs and may be in a position to assist her.

[15]     In all of those circumstances it seems to me appropriate to grant her leave to apply for home detention so that those matters can be fully explored by the Parole Board.  To that extent the appeal is allowed and leave is granted to apply for home detention.

Solicitors:

C Yardley, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent

CC:

Judge Zohrab