Wendt v Police

[2020] NZHC 305

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-331

[2020] NZHC 305

BETWEEN

JOSHUA WENDT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers (last submission received 3 February 2020)

Counsel:

S-S Ou for appellant

J Phillips for respondent

Judgment:

27 February 2020

JUDGMENT OF KATZ J

This judgment was delivered by me on 27 February 2020 at 11:30am

Registrar/Deputy Registrar

Solicitors:           Meredith Connell, Office of the Crown Solicitor, Auckland Counsel:       S-S Ou, Barrister, Auckland

WENDT v NEW ZEALAND POLICE [2020] NZHC 305 [27 February 2020]

Introduction

[1]                 Following a Judge-alone trial in the District Court, Joshua Wendt was found guilty of assault with intent to injure.1 He was sentenced to 180 hours of community service, a twelve-month supervision order, and an emotional harm payment of $800 to the victim.

[2]                 I quashed Mr Wendt’s conviction for assault with intent to injure on appeal, and substituted a conviction for the lesser charge of common assault.2 It was common ground between counsel that I approach the matter as, in effect, a sentence appeal and re-sentence Mr Wendt, rather than remit the matter to the District Court.3 Accordingly, following delivery of my judgment, counsel for both parties filed further submissions as to the appropriate sentence.

Starting Point

[3]There is no tariff case for common assault. Circumstances can vary widely.

[4]                 The facts of Mr Wendt’s offending are fully set out in my earlier judgment.4 In summary, Mr Wendt was in a casual relationship with his former flatmate, who is the victim of his offending. He returned home drunk and angry one night and, after throwing his beer can against the wall, grabbed the victim by the neck with one hand. Her back was against the wall. The pressure was not enough to restrict her breathing or circulation. Understandably, however, it was a very frightening experience for her. After a minute or two Mr Wendt pushed the complainant away. She stumbled but did not fall. She did not suffer any injuries.

[5]                 The major aggravating factor is that Mr Wendt placed his hand on the complainant’s neck/throat area. That is an inherently dangerous act. Although her breathing was not interfered with, any increase in pressure could have had very serious consequences. Further, the attack occurred in a domestic setting and involved a significant degree of intimidation.

1      Police v Wendt [2019] NZDC 21921.

2      Pursuant to s 234(2) of the Criminal Procedure Act 2011; Wendt v Police [2019] NZHC 3480.

3      Pursuant to s 234(5) of the Criminal Procedure Act 2011.

4      Wendt v Police [2019] NZHC 3480.

[6]                 The offending is not at the bottom end of the range of common assault charges, but neither is it as serious as cases like Mann where the victim was knocked over by the force of the assault, or Dickerson, where the assault was committed while on bail for similar offending.5 Having regard to broadly similar cases, a starting point of five months’ imprisonment is appropriate.

Personal Aggravating and Mitigating Factors

[7]                 The only aggravating personal factor suggested is Mr Wendt’s previous similar offending in 2008 and 2009. The Crown suggests that a one-month uplift would be appropriate. I agree.

[8]There appear to be no personal mitigating factors.

Community Work

[9]                 The Sentencing Act 2002 requires the Court to impose the least restrictive sentence that is appropriate in the circumstances.6 A sentence of 180 hours of community work was imposed in the District Court. This reflected, however, that  Mr Wendt had been convicted of the more serious charge of assault with intent to injure (which carries a maximum sentence of three years’ imprisonment)7 rather than common assault (which carries a maximum sentence of one year’s imprisonment).8

[10]              It is arguable that 180 hours of community work would still be within range, even on the present conviction (albeit at the upper end of the available range). However, to reflect that Mr Wendt has now been convicted of a lesser charge, it is appropriate, in my view, to reduce his sentence from 180 hours of community work to 140 hours of community work. Mr Wendt is entitled to credit for the fact that his original conviction was overturned on appeal, and a conviction for a lesser offence substituted. I am satisfied that a sentence of 140 hours community work, together with

5      Dickerson v Police [2016] NZHC 802; Police v Vuetaki [2016] NZHC 2515; Mann v Police [2012] NZHC 2613.

6      Sentencing Act 2002, s 8(g)

7      Crimes Act 1961, s 193.

8      Crimes Act 1961, s 196.

supervision and an emotional harm payment to the victim, will meet the sentencing principles of accountability, deterrence, and denunciation.

Sentence

[11]              The sentence imposed in the District Court is quashed. In substitution for that sentence, I sentence Mr Wendt to:

(a)140 hours of community work (cumulative on any current sentence of community work);9

(b)12 months of supervision; and

(c)an emotional harm payment of $800 to the victim.

[12]              I note that the District Court considered it important that, as part of his supervision, Mr Wendt attend a full anger management/Living Without Violence programme as soon as possible, to minimise the risk of reoffending. I share that view.

Katz J

9      At the time of sentencing in the District Court Mr Wendt had seven hours of community work outstanding on a previous sentence.