Ward v Police

[2013] NZHC 628

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-5 [2013] NZHC 628

BETWEEN  NICHOLAS JAMES WARD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 March 2013

Counsel:         RE Nabney for Appellant

AD Hill for Respondent

Judgment:      27 March 2013

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

RE Nabney (Tauranga) for Appellant

Gordon Pilditch (Rotorua) for Respondent

WARD V POLICE HC ROT CRI-2013-470-5 [27 March 2013]

Introduction

[1]      The  appellant  appeals  his  sentence  of  six  months’ imprisonment  on  one charge of male assaults female and one charge of wilful damage.  It was imposed on him by Judge TH Everitt in the District Court at Tauranga on 8 March 2013.  The charge of wilful damage can be set aside for the purposes of this appeal.

[2]     The appellant submits that the Judge’s starting point of eight months’ imprisonment was too high and that a community-based sentence should have been the end result rather than the sentence of six months’ imprisonment.

[3]      Mrs Nabney for the appellant has made concise and cogent submissions.  She emphasises that the appellant’s previous record upon which the Judge put emphasis occurred some time in the past.  I will come to that matter again.

[4]      Mrs Nabney also emphasises that the appellant is a young man who has begun to show signs of maturity.  He was at the time of the assault working on a 20-

30 hour  per  week  basis.    He  now  has  a  job  that  he  could  take  up  in  Taupo commencing  on  1 June  2013.    If  he  were  to  be  subject  to  a  community-based sentence, he could take up that opportunity.   This would take him away from Tauranga where he has got into trouble and would be a means of him moving forward.

[5]      Overall, Mrs Nabney submits the District Court Judge appears to have taken an emotional approach to the offending with which he was confronted rather than an objectively legal one.

[6]      Mr Hill for the respondent submits that the sentence is broadly in line with other cases of its type and that the end sentence is not manifestly excessive.   He points to the maximum sentence of two years’ imprisonment and submits that a sentence in the circumstances of this case equating to one-quarter of the maximum must be available to the District Court Judge.

[7]      This is an appeal by way of rehearing.  I must make my own decision as to the sentence appropriate in this case.   However, I will interfere with the sentence imposed by the District Court Judge only if I find that it was manifestly excessive.

The facts

[8]      The facts can be stated simply.

[9]      On 12 November 2012 at his home, the appellant, 22 years old, became angry with his younger brother and started screaming abuse at him. The appellant’s mother intervened  and  tried to  calm  him  down.   The appellant  started throwing things around.  This damaged an interior wall.  The appellant continued abusing his brother and again his mother intervened.   He grabbed his mother by the upper arms and threw her to the ground.  He then picked up a stone statue, held it above his head in a threatening manner, and screamed at the victim that he was going to smash her with it.  Fortunately he did not.  He left the address.

[10]     The victim, in her victim impact statement, records that she had only recently allowed the appellant to move back into the house.  He had been excluded from the house because of what the victim describes as his “long history of abuse”.   The victim says that as a result of the assault she received a bruised right knee and a bruised upper right arm.   She says that it was “horrible” to have to stand there wondering if her own child was going to kill her.  She does not think that he was acting normal and would like it if he could be given assistance by the mental health authorities.

Discussion

[11]     The big problem for the appellant is that this was not the first time he had assaulted his mother.   He has convictions for assaulting her in 2006 and again in

2007. This was his third assault on her.

[12]     I accept the submission of Mrs Nabney that the last of these assaults occurred some five years before the incident which is the subject of this appeal.  However, the

District Court Judge was still dealing with a third assault by a young man on his mother which occurred in her home.

[13]     The appellant has a further problem.   He has a poor record of compliance with community-based sentences. The list is as follows:

2008 – breach of community work

2008 – breach of conditions of supervision

2008 – breach of conditions of supervision

2009 – breach of conditions of community detention

2010 – breach of community work

2010 – breach of release conditions

[14]     The appellant  has a list  of convictions  for dishonesty,  drink  driving and drugs.  On 1 February 2011, he was sentenced to short terms of imprisonment.

[15]     Taking the above into account, the District Court Judge was of the view, shared by the probation officer, that a community-based sentence was inappropriate.

Decision

[16]     My task  is  to  assess  the  case  and  ultimately to  decide  whether  the  end sentence of six months’ imprisonment was manifestly excessive.  It does not really matter how the District Court Judge arrived at the end point.  My focus must be on whether the end point was available to him.

[17]     In the particular circumstances of this case, I am satisfied that an end point of six months’ imprisonment was within the range available to the District Court Judge. As Mr Hill submitted, it is always difficult finding exact comparisons in the case law. A first principles approach is required.

[18]     This was a relatively minor assault.  Normally, with a relatively minor assault and a young offender showing signs of increasing maturity, a community-based sentence would be warranted.   The sentencing purposes of rehabilitation and reintegration would be emphasised. The need to impose the least restrictive sentence would be paramount.  But those are not the circumstances here.

[19]     Despite the fact that the two previous assaults occurred some years before the current assault, they did occur.  The Judge was dealing with a young man who had assaulted his mother for the third time.

[20]     The assault itself might have been comparatively minor, but it was certainly compounded by the making of the threat with the stone statue.  The victim impact statement makes it clear what the effect of that was on his victim.  Even so, a Judge might still look for a suitable sentence that would keep the appellant in the community.  However, his record is simply too bad for there to be any confidence that he would comply with the terms of a community-based sentence.  Certainly, the probation officer did not think he would.

[21]     Under all of those circumstances, I am unable to disturb the decision of the

District Court Judge. The appeal is dismissed.

Brewer J