Wallace-Joe v Police - [2016] NZHC 3060

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-000034 [2016] NZHC 3060

BETWEEN
TRAVIS DWAYNE WALLACE-JOE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 December 2016

Counsel:

P J Jensen for Appellant
C R Stuart for Respondent

Judgment:

14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] On 4 July 2016, the appellant pleaded guilty to three charges of male assaults female, four of breaching a protection order, and one of intentional damage. On
20 September 2016, he was sentenced to 16 months’ imprisonment.1 He appeals

against sentence on the basis of a new affidavit of the victim, and says that a sentence of supervision and community work should have been imposed.

Facts

[2] The first set of offending occurred on 2 January 2016 at the address where Mr Wallace-Joe and the victim both lived. A protection order had been issued nearly two years earlier in April 2014. She had locked him out, and he smashed a window to get into the property. He became violent, and pushed her, causing her to fall to the floor. When she tried to get up, he kept pushing her down. He walked through the
house and she confronted him in the hallway, asking him to leave. He then pushed

1 Police v Wallace-Joe [2016] NZDC 18749.

WALLACE-JOE v NEW ZEALAND POLICE [2016] NZHC 3060 [14 December 2016]

her around the throat, resulting in a small scratch. This resulted in charges of contravening the protection order, intentional damage and male assaults female.

[3] Mr Wallace-Joe was bailed for those offences, and his conditions included not associating with the victim and not going within 100 metres of her address. On the evening of 13 April 2016, he arrived at her house. She was not there. She arrived home and confronted him about money issues, and asked him to leave. He refused. He became angry and picked up a bottle of liquid and threw it at the victim, hitting her in the head. She walked outside and waited about five minutes for him to leave. He did not leave. The victim then returned and asked him to leave again. He picked up a bag of rubbish and swung it at her head, hitting her in the face. She left the address in a vehicle and told Mr Wallace-Joe she would call the police.

[4] She returned to the address after a short period, thinking he may have left. She drove into the driveway and saw him walking from behind the garage, holding a spade. She got out of the vehicle and asked him to leave again. He approached her, and using both hands, pushed her in the chest against the wall of the house. He verbally abused her and pretended to hit her with the spade. She tried to walk towards her car, but Mr Wallace-Joe wrapped his fingers around the front of her neck and pushed her three times while she was walking. She ran to the car and left the address.

District Court…

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.

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Details

Case: [2016] NZHC 3060
Decision Date: 14 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Travis Dwayne Wallace-Joe appealed against his sentence of 16 months' imprisonment imposed for multiple charges, including male assaults female and breaching a protection order. The court had to determine whether the District Court judge had erred in imposing the sentence, particularly in light of a new affidavit from the victim that suggested a different dynamic in their relationship compared to the victim impact statement provided earlier. The appellant argued that the District Court had overvalued the impact of the offending on the victim due to the misrepresentation in the victim impact statement and that a sentence of supervision and community work should have been imposed instead.

The court examined the legal principles applicable to sentencing, including the principle that the appellant must demonstrate an error in the judge's reasoning or an error apparent from additional material submitted on appeal, which results in a manifestly excessive sentence. The court noted that the District Court judge had only referred to one sentence of the victim impact statement in his sentencing notes, which was not contradicted by the new affidavit. The court also reviewed the uplifts and reductions adopted by the District Court judge, noting that the significant uplift for previous offending and offending while on bail was excessive and constituted an error of principle.

The court allowed the appeal to the extent that the sentence was manifestly excessive and recalculated the sentence, reducing the uplift for previous offending and the further uplift for offending while on bail. The court imposed a starting point of 12 months, uplifted by two months for previous offending, three months for offending while on bail, and discounted by four months for a guilty plea and one month for time on restricted curfew, resulting in a final sentence of 12 months' imprisonment.

Orders