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…

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 Wendt v Police

Details

AGLC: Wendt v Police [2020] NZHC 305
Case: [2020] NZHC 305
Decision Date: 27 February 2020

CaseChat Overview and Summary

Joshua Wendt, the appellant, contested a conviction for assault with intent to injure handed down by the District Court, which resulted in a sentence of 180 hours of community service, a twelve-month supervision order, and an emotional harm payment of $800 to the victim. Katz J, the judge, quashed Mr Wendt's conviction and substituted it with a conviction for the lesser charge of common assault. Katz J proceeded to re-sentence Mr Wendt, considering the matter as, in effect, a sentence appeal. The court was required to decide the appropriate sentence for the lesser charge of common assault, taking into account the aggravating and mitigating factors, and the Sentencing Act 2002.

Katz J began by acknowledging that there is no tariff case for common assault, and the circumstances can vary widely. Katz J then outlined the facts of Mr Wendt's offending, highlighting the major aggravating factor of placing his hand on the complainant's neck/throat area, which is inherently dangerous. Katz J determined that a starting point of five months' imprisonment was appropriate, considering broadly similar cases. Katz J also considered the personal aggravating factor of Mr Wendt's previous similar offending in 2008 and 2009, and agreed with the Crown's suggestion of a one-month uplift. Katz J found no personal mitigating factors.

Based on the Sentencing Act 2002, Katz J imposed the least restrictive sentence that was appropriate in the circumstances. Katz J reduced Mr Wendt's sentence from 180 hours of community work to 140 hours of community work, to reflect that Mr Wendt had been convicted of a lesser charge. Katz J also maintained the twelve months of supervision and the emotional harm payment of $800 to the victim. Katz J noted that the District Court considered it important for Mr Wendt to attend a full anger management/Living Without Violence programme as soon as possible, to minimise the risk of reoffending.

In conclusion, the High Court quashed the sentence imposed in the District Court and substituted it with a sentence of 140 hours of community work, twelve months of supervision, and an emotional harm payment of $800 to the victim. Katz J shared the view of the District Court that attending an anger management/Living Without Violence programme was important for Mr Wendt to minimise the risk of reoffending.

Orders