Watene v Police - [2020] NZHC 3011

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-117

[2020] NZHC 3011

BETWEEN
SIMON WATENE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 November 2020

Counsel:

D Malcolm for Appellant G Banuelos for Respondent

Judgment:

13 November 2020

JUDGMENT OF WHATA J

Solicitors: Redwoods Law, Rotorua
Crown Solicitors, Rotorua

WATENE v POLICE [2020] NZHC 3011 [13 November 2020]

Introduction

[1] Simon Watene (Mr Watene) pleaded guilty to one charge of breaching a protection order1 and one charge of assault on a person in a family relationship.2 Judge MacKenzie sentenced Mr Watene to 10 and a half months’ imprisonment for each charge to be served concurrently.3 Mr Watene now appeals that decision on the basis the starting point was manifestly excessive.

Circumstances of the offending

[2] The victim and Mr Watene have been together for eight years. They have one child together, aged 10 months. The summary of facts to which Mr Watene pleaded guilty are as follows. Mr Watene and the victim were engaged in a heated verbal argument. As a result, the victim punched Mr Watene in the head a couple of times. The summary then states:

This caused the defendant to push the victim back into their bedroom and onto their bed.

The Defendant has placed one hand around the neck of the Victim holding her down on the bed, the Defendant has then raised a clenched fist and threatened to punch her in the head.

The witness has entered the bedroom and seen this, the witness has then called [the] police.

[3] Mr Watene pleaded guilty to the charges at a Case Review Hearing following an amendment to the summary of facts.

District Court decision

[4] The District Court Judge adopted a starting point of 12 months’ imprisonment for the offending. The Judge referred to Te Tau v Police4 involving male assaults female, breach of protection order and other charges, and Manuel v Police5 involving two charges breach of protection order, male assaults female and intentional damage, where combined starting points of 12 months were adopted for the assaults and

1      Family Violence Act 2018, ss 90(a) and 112(1)(a) – maximum penalty three years’ imprisonment.
2      Crimes Act 1961, s 194A – maximum penalty two years’ imprisonment.
3      Police v Watene [2020] NZDC 18882.
4      Te Tau v Police [2012] NZHC 1068.
5      Manuel v Police [2015] NZHC 66.

breaches of protection orders. The Judge also identified the following aggravating features of the offending:

(a)the family violence context;

(b)the attack to the neck and the presence of an element of coercion and control;

(c)the victim was vulnerable given the limited escape options in the bedroom; and

(d)the proximity of two previous protection order breaches to…

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 Watene v Police

Details

AGLC: Watene v Police [2020] NZHC 3011
Case: [2020] NZHC 3011
Decision Date: 13 November 2020

CaseChat Overview and Summary

Simon Watene appealed against his sentence of 10 and a half months’ imprisonment for breaching a protection order and assaulting a person in a family relationship. The High Court was required to determine whether the District Court Judge had erred in setting the starting point of the sentence at 14 months, and whether the sentence was manifestly excessive. The court considered the arguments made by both parties, focusing on the starting point and the nature of the offending. The court concluded that the starting point was too high and that the end sentence was manifestly excessive.

The High Court found that the District Court had erred in setting the starting point at 14 months, as it was too high when compared to similar cases. The court found that the starting point should have been nine months, reflecting the attack on the neck and the prior offending, rather than 14 months. The court also found that the end sentence was manifestly excessive, as it did not accurately reflect the culpability of the offending and the absence of injury to the victim. The court imposed a sentence of eight months’ imprisonment, after applying a 25 per cent discount for the early guilty plea. The court noted that the sentence was within the range that could be properly justified by accepted sentencing principles.

Orders