W v Police HC Wellington CRI-2010-441-35

[2010] NZHC 1570

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-441-35

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 September 2010

Appearances: M Lillico for Ms W 

J Webber for New Zealand Police

Judgment:      7 September 2010

JUDGMENT OF MALLON J

Introduction

[1]      Ms W   was sentenced to 18 months’ imprisonment on a charge of assault with intent to injure.   Her co-accused, Ms Brown, was sentenced to 12 months’ imprisonment.  On appeal Ms Brown was granted leave to apply for her sentence to be substituted with a sentence of home detention if a suitable address could be found. Ms W   now appeals her sentence on the basis that she too ought to have been granted leave to substitute a sentence of home detention.

Background

[2]      The  circumstances  of  the  offending  were  described  by  the  Judge  who considered Ms Brown’s appeal as follows (Brown v New Zealand Police HC Napier CRI 2010-441-27, 18 August 2010):

On 15 April 2010, Ms Brown, her co-offender Ms W  , and Ms Brown’s female flatmate, the victim, were drinking when Ms Brown and the victim had an argument.  Ms Brown then pulled the victim’s hair and punched her in the head three or four times before pulling the victim forward by her hair. As she did so, Ms W   kicked the victim in the face, causing her to fall to

W V NEW ZEALAND POLICE HC WN CRI-2010-441-35 7 September 2010

the floor, and then kicked the victim to the head, ribs and back repeatedly. An associate intervened, but Ms Brown stomped on the victim’s forehead and Ms W   kicked the victim another three times.   They then left the scene.

The victim was rendered unconscious.  Photographs depict a severe beating. She suffered extensive bruising and swelling to the right side of her face and spent two days in hospital.

[3]      The two accused pleaded guilty and were before the District Court Judge for sentencing on 20 July 2010.  At that time Ms W   had a home detention address if that sentence were to be imposed, but Ms Brown did not.  The Judge adjourned the sentencing of the two accused to 10 August 2010 to provide Ms Brown with a further opportunity to find a suitable address.  Ms W  , who had until that point been on bail, was remanded in custody to the 10 August 2010 date.  The file does not record the reasons for the remand in custody.  By 10 August 2010, with Ms W  ’s remand in custody, she no longer had a suitable home detention address.  Ms Brown had not found a suitable address either.

[4]      The District Court Judge considered that there was no basis to distinguish between Ms W   and Ms Brown as to their respective culpability in the offending. He adopted a starting point for both of them of two years’ imprisonment.   Both accused were entitled to a discount for their early guilty pleas.  The District Court Judge came to a different end sentence for the two accused because Ms Brown was a first offender whereas Ms W   had previous convictions for violence offending.

[5]      On Ms Brown’s appeal, the High Court Judge agreed with the two year starting point and that the same starting point should apply to both accused.   The Judge considered that in view of the mitigating factors home detention was the proper sentence.  He considered that Ms Brown should have the opportunity to find a suitable address and that she should have leave to apply to substitute her sentence if a suitable address could be found.

Home detention for Ms W  ?

[6]      Submissions for Ms W  , prepared for the sentencing originally scheduled for 20 July 2010, advanced the position that a sentence of home detention was

appropriate.   Because she had lost the home detention address by the time of sentencing on 10 August 2010 the focus of submissions for her was on the grant of leave to substitute her sentence with one of home detention if a suitable address could be found.  Leave was required to be granted if the Judge considered that home detention would have been appropriate but no suitable home detention address was available.  The  Judge  did  not  discuss  the  appropriateness  of  home  detention  for Ms W   and gave no reasons why he was not prepared to grant leave.   In the absence of any express consideration of home detention for Ms W   and any reasons for rejecting that as appropriate, counsel are agreed that I can consider the matter afresh.

[7]      The offending here was a serious case of its kind.  That alone does not make home detention inappropriate.  It appears that the Judge rejected home detention for Ms Brown because the offending involved serious violence, but on appeal the High Court considered that home detention was appropriate in light of mitigating factors that applied to Ms Brown.  If home detention was appropriate for Ms Brown, then it might too be appropriate for Ms W   when consideration is given to her circumstances.

[8]      An important difference between Ms W   is her previous convictions for violence.  In 2004, when she was 20 years old, she was sentenced to imprisonment for one year with leave to apply for home detention.   In February 2010 she was sentenced to 40 hours community work for a common assault (which took place on Christmas day in 2009).   Those convictions show a propensity for violence and therefore a particular need for individual deterrence.  That factor is relevant not only to the term of the sentence imposed (the Judge uplifted the imprisonment term by two months for this) but also to whether imprisonment or home detention is the appropriate sentence.   That is because a propensity for violence might mean that rehabilitation should be given less weight and that therefore imprisonment is more appropriate.

[9]      Against that, however, were the factors that indicated that home detention was appropriate.  Ms W   had pleaded guilty at an early stage.  In early May 2010 she  had  self-referred  for  an  assessment  with  Central  Health’s  alcohol  and  drug

service.   She had also contacted DOVE to enquire about the Women Managing Anger without Violence Programme and had been put on a waiting list.  That might be viewed as a cynical attempt to avoid prison on these charges but I am prepared to accept that it shows that she had at least recognised that she had both alcohol and violence issues.  Ms W   had also offered to attend a restorative justice conference but this did not occur because the victim could not be located.  Ms W   has a two year old daughter who was in her care until her remand in custody.  The pre-sentence report writer assessed her motivation to address the factors related to her offending as moderate to high, noting that Ms W   did not wish her daughter to be disadvantaged by her behaviour in the future, and had recommended home detention.

Conclusion

[10]     In light of all of these factors I consider that home detention was appropriate. Ms W   has rehabilitation prospects and home detention will better serve those prospects,  while  also  serving the  need  to  deter  and  denounce  the  offending.    I therefore consider that leave should have been granted for Ms W   to apply to substitute her sentence to home detention if a suitable address can be found.  I grant leave accordingly.

Mallon J

Solicitors:

M Lillico, Ord Lillico, Wellington, email: [email protected]

J Webber, Luke Cunningham & Clere, Wellington, email:[email protected]