Wallace v Police

[2013] NZHC 2800

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-20 [2013] NZHC 2800

BETWEEN  MICHAEL DESMOND JAMES WALLACE

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   24 October 2013

Appearances:           B Kilkelly for Appellant

C Power for Respondent

Judgment:                24 October 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

MICHAEL DESMOND JAMES WALLACE v NEW ZEALAND POLICE [2013] NZHC 2800 [24 October

2013]

[1]      Mr Wallace pleaded  guilty in the District Court to assaulting his female partner, wilfully damaging property and breaching prison release conditions.  He did so after accepting a sentence indication on 2 July 2013.  Judge Doherty sentenced Mr Wallace on the same date to 14 months imprisonment on the charges of assaulting his partner and wilful damage.1   He added a three month cumulative sentence for the charge of breaching the release conditions.  This led to an end sentence of 17 months imprisonment.

[2]      Mr  Wallace  now  appeals  against  the  sentence  the  Judge  imposed.    He contends that the sentences the Judge imposed on the charges of assault and wilful damage were too high.  He also argues that the Judge imposed a cumulative sentence on the remaining charge that was manifestly excessive in all the circumstances.

The facts

[3]      The facts giving rise to the charges were contained in a summary of facts that was presented to the Judge for the purpose of the sentence indication hearing.  For that reason, Mr Wallace must be taken to agree to the matters contained in the summary.  This records that Mr Wallace and his partner had been in a “on again, off again” relationship for nine years.  At about 10 am on 26 May 2013, Mr Wallace went to his partner’s address.  When she came to the door, he told her he wanted to see his infant son.  She told him to go away, and that he should arrange to see his son without her being present.

[4]      This prompted Mr Wallace to begin attacking the door.   He subsequently smashed the wooden door in half, breaking the door at both the lock and the hinge. Having gained entry to the address, he went into the victim’s bedroom where he tore an item of her underwear in half.  His partner tried to placate Mr Wallace by making breakfast for him.  In doing so, she repeatedly asked him to leave her address.

[5]      In the early afternoon, Mr Wallace’s partner went outside to have a cigarette. He followed her, and tried to take the cigarette from her hand.  She then began to walk away from him, but he tackled her from behind.   The force of the tackle

knocked her into a small tree on the ground.  As Mr Wallace’s partner was on the ground, he slapped her across the face several times while standing over her.   He then attempted to pull her to her feet using her hair.  At this stage, his partner began yelling for help.

[6]      Mr Wallace then pulled her dressing gown off, leaving her half naked. At this point Mr Wallace grabbed her dressing gown, and stuffed it into her mouth in order to silence her cries for help.  He then slapped his partner several times in the face. The incident only came to an end when a neighbour heard Mr Wallace’s partner yelling and came to her aid.

Decision

[7]      Viewing that incident as a whole, I do not consider that an end sentence of

14 months imprisonment was excessive.  The offending was sustained in nature, and involved actual violence in different forms.  The sentence also took into account the fact that Mr Wallace has numerous previous convictions for similar offending.  The most relevant of these for present purposes is a sentence of 14 months imprisonment that  Mr  Wallace  received  following  a  decision  of  the  Court  of Appeal  on  26

November 2012.2   This related to an earlier attack on the same victim and one of her

friends.   This, too, was a serious attack involving a relatively sustained period of violence.  In that case, Mr Wallace’s appeal was successful to the extent that an uplift of six months to reflect his previous convictions was reduced to three months.

[8]      The only issue of any concern is that relating to the charge of breaching prison release conditions.  These relate to the fact that Mr Wallace disengaged from attending psychological counselling that the Parole Board had ordered him to attend as part of his release conditions.  The transcript of the sentence indication hearing reveals that a representative of the probation service told the Judge that Mr Wallace had been directed to undertake departmental psychological counselling, and “essentially [he] has failed to do that”.  The Judge would no doubt have gained the impression from this advice that Mr Wallace had blatantly refused to attend the counselling directed by his probation officer.

[9]      That would have been a serious matter, because Mr Wallace has numerous previous convictions for breaching Court orders.   These include breaches of supervision, breaches of release conditions and breaches of community work.   In those circumstances, he could not argue with a cumulative sentence of three months imprisonment.

[10]     Today, however, counsel for Mr Wallace advises me that Mr Wallace did not refuse outright to attend counselling.  Rather, he attended counselling with a female counsellor on two separate occasions.  He did not gain any sense of rapport with her, and therefore elected to cease attending counselling.   Counsel advises me that Mr Wallace has now engaged satisfactorily with a psychologist whilst in prison.   Mr Wallace is anxious for the true nature of the breach to be placed before this Court so that  it  can  reassess  the  issue  of  whether  or  not  the  cumulative  sentence  was excessive.

[11]     I propose to give Mr Wallace the benefit of the doubt on this matter.  Taking what his counsel now says to be correct, I consider the Judge is unlikely to have imposed a cumulative sentence of three months imprisonment if he had known that Mr Wallace attended counselling on two occasions.  I consider that a starting point of no more than six weeks imprisonment would have been warranted to reflect the gravity of that offending, together with an uplift of a further two weeks to reflect his previous  convictions  for  breaching  Court  orders.    This  would  have  led  to  a cumulative end sentence of two months imprisonment on the charge of breaching the prison release conditions.

Decision

[12]     I therefore allow the appeal to the extent that I quash the cumulative sentence of three months imprisonment imposed on the charge of breaching prison release conditions.     In  its  place,   I  impose  a  cumulative  sentence  of  two   months

imprisonment.

Lang J

Solicitors:

Crown Solicitor, Dunedin

Wilkinson Adams, Dunedin