Wallace v R - [2012] NZCA 546

IN THE COURT OF APPEAL OF NEW ZEALAND

CA540/2012
[2012] NZCA 546

BETWEEN MICHAEL DESMOND JAMES WALLACE
Appellant

AND THE QUEEN
Respondent

Hearing: 30 October 2012

Court: Ellen France, Allan and Lang JJ

Counsel: S A Saunderson-Warner for Appellant
K A L Bicknell for Respondent

Judgment: 26 November 2012 at 10 am

JUDGMENT OF THE COURT

AAn extension of time to file the appeal is granted and the appeal against sentence is allowed.
B The sentence of 16 months imprisonment on the male assaults female charges is quashed. A sentence of 14 months imprisonment is imposed in its place. The other sentences imposed by the District Court together with the special conditions remain. All sentences to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

The appellant pleaded guilty to two counts of male assaults female, two counts of common assault and one count of intentional damage. The bulk of the offending related to the appellant’s partner, Ms K. The appellant was sentenced by Judge Crosbie to a term of 16 months imprisonment.[1] He appeals against his sentence on the basis it is manifestly excessive.
[1] R v Wallace DC Dunedin CRI-2011-012-2461, 24 July 2012 [sentencing remarks].
The appeal raises issues about the starting point adopted by the Judge, the uplift for previous convictions, and the discount afforded for time spent on electronic bail.

Factual background

On 28 April 2011, the appellant’s partner, Ms K, was sitting on the couch in their lounge. The appellant went up to her and punched her in the leg. She kicked out in self-defence. The appellant then set upon her, punching her numerous times with both fists about her upper and lower legs. As the Judge said in the sentencing remarks, she tried to protect herself by putting her arms over her legs but “the attack continued and she was struck to her arms, stomach and back”.[2] The complainant was punched with such violence that she landed on the floor and curled into a foetal position. The attack stopped after she lay crying in that position. Ms K suffered severe bruising covering her legs, back, stomach, arms and shoulder. She also suffered soreness and mental stress. This incident gave rise to the first charge of male assaults female.
[2] At [4].
The next day, Ms K and her friend, Ms J, were at the house again. Ms K was getting changed and applying makeup when the appellant entered the room and racially abused her, calling her “a dirty nigger and filthy whore”.[3] Ms K and the appellant went to his bedroom where he continued to abuse her. In an attempt to escape she ran down the hall, wearing just her underwear, towards the front door. The appellant chased her, grabbed her and threw her into another bedroom. He pushed her into an upstanding heater causing it to fall over and Ms K to fall on top of it. Ms K ran to the door in a state of distress…

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 Wallace v R

Details

AGLC: Wallace v R [2012] NZCA 546
Case: [2012] NZCA 546
Decision Date: 26 November 2012

CaseChat Overview and Summary

In the case of Wallace v R, Michael Desmond James Wallace appealed against the sentence imposed by Judge Crosbie of 16 months imprisonment, arguing it was manifestly excessive. The Court of Appeal of New Zealand heard the appeal and addressed several issues regarding the sentence. The court assessed the starting point adopted by the Judge, the uplift for previous convictions, and the discount for time spent on electronic bail. The court found the starting point adopted by the Judge was within the available range, considering the seriousness of the offending, which included sustained attacks on the victim and a gratuitous assault on another individual. The court agreed with the Crown that a three-month uplift for previous convictions was appropriate, rather than the six months initially imposed by the Judge. The court also accepted that the two-month discount for time spent on electronic bail was appropriate. The court concluded that the 16-month sentence on the male assaults female charges was manifestly excessive and imposed a new sentence of 14 months imprisonment, to be served concurrently with the other sentences imposed by the District Court.

The Court of Appeal allowed the appeal against sentence, quashed the sentence of 16 months imprisonment on the male assaults female charges, and imposed a new sentence of 14 months imprisonment in its place. All sentences were to be served concurrently, and the other sentences imposed by the District Court together with the special conditions remained. The court granted a short extension of time to file the appeal, as requested.

Orders