Wheeler v The Queen - [2019] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-073

[2019] NZHC 914

BETWEEN
CHRISTOPHER WHEELER

Appellant

AND

THE QUEEN

Respondent

Hearing: 29 April 2019

Appearances:

S Walker for Appellant S Navot for Crown

Judgment:

29 April 2019

ORAL JUDGMENT OF TOOGOOD J

WHEELER v R [2019] NZHC 914 [29 April 2019]

Introduction

[1]On 6 November 2018, Christopher James Wheeler pleaded guilty to:

(a)one representative charge of assault with intent to injure;1

(b)one charge of injuring with intent to injure;2 and

(c)two charges of breaching a protection order.3

[2] On 8 February 2019, Judge R G Ronayne sentenced Mr Wheeler to two years and three months’ imprisonment,4 and Mr Wheeler now appeals that sentence.

The offending

[3] Mr Wheeler was in a relationship with the complainant, T, for approximately two years. At the time of the offending they were living together. On 12 April 2017, a temporary protection order had been issued against Mr Wheeler in T’s favour.

[4] On 31 January 2018, Mr Wheeler and T were at home together. Mr Wheeler was intoxicated and acting aggressively. He grabbed T by the hair, dragged her to the couch and repeatedly smashed her head against it.

[5] Mr Wheeler told T that if she went to the Police he was going to “do something”. He then punched himself repeatedly in the right eye, causing it to bruise. Mr Wheeler threatened to tell the Police that T had caused that injury.

[6] On 2 February 2018, Mr Wheeler and T were at home together. Again, Mr Wheeler was intoxicated. He and T began to argue about Mr Wheeler’s failure to contribute towards bill payments.

1      Crimes Act 1961, s 193; the maximum penalty is three years’ imprisonment.
2      Section 189(2); the maximum penalty is five years’ imprisonment.
3      Domestic Violence Act 1995, s 49; the maximum sentence is three years’ imprisonment.
4      R v Wheeler [2019] NZDC 2131.

[7] Mr Wheeler became incensed. He grabbed T by the throat and threw her onto the bed. As he continued to apply pressure to T’s throat, Mr Wheeler told her that he could kill her. He then released her throat, instead covering her mouth and nose so that she was unable to breathe.

[8] These two incidents make up the representative charge of assault with intent to injure and one of the breaches of the protection order.

[9] The narrative resumes immediately afterwards, still on the same date. T told Mr Wheeler to leave and in response, he punched her to the right eye with the palm of his hand, causing her to fall backwards.

[10] That offending makes up the injuring with intent to injure charge and the other breach of the protection order.

[11] T suffered a bruised and swollen right eye; back pain; bruising to her shoulder, arm and buttocks; and a cut to her lip. These injuries resulted from repeated violence which might have resulted in even more serious consequences.…

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 Wheeler v The Queen

Details

AGLC: Wheeler v The Queen [2019] NZHC 914
Case: [2019] NZHC 914
Decision Date: 29 April 2019

CaseChat Overview and Summary

Christopher James Wheeler appeals the sentence of two years and three months' imprisonment imposed by Judge Ronayne, following his conviction for assault with intent to injure, injuring with intent to injure, and breaching a protection order. The Crown accepts that the Judge could have given Mr Wheeler a greater discount for his rehabilitative efforts but submits that the sentence was within the available range and not manifestly excessive. The appeal raises three issues: the starting point, the discount for time spent on electronically monitored bail, and the discount for rehabilitative efforts. The starting point was correctly assessed by Judge Ronayne, who focused on the significant emotional harm inherent in family violence and the particular seriousness of the nature of the offending, given that it included strangulation. The discount for time spent on electronically monitored bail was also appropriately applied, considering the period of time spent on bail, the restrictiveness of the conditions, the level of compliance, and any other relevant matters. Finally, while giving a discount for engaging in rehabilitative measures is within a sentencing Judge's discretion, Mr Wheeler's criminal history was significant and concerning in the context of the index offending. The Judge did not make any error in his approach to the giving of discounts. The appeal is dismissed.

This case underscores the importance of considering the emotional harm and the particular seriousness of family violence when assessing a starting point for sentencing. The court also emphasises that the discount for time spent on electronically monitored bail and the discount for rehabilitative efforts are factors properly left for the sentencing Judge's assessment. In this case, the sentence imposed by Judge Ronayne was within the available range and not manifestly excessive.

Orders