White v Police - [2019] NZHC 1818

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2019-412-17

[2019] NZHC 1818

BETWEEN
DAMIEN GARY WHITE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 July 2019

Counsel:

B P Kilkelly for Appellant R Smith for Respondent

Judgment:

30 July 2019

JUDGMENT OF SIMON FRANCE J

[1] Mr White appeals a sentence of three years and two months’ imprisonment imposed in relation to a number of charges, the most serious of which was attempting to pervert the course of justice.1

Facts

[2] Mr White was first charged with male assaults female, the victim being a former partner he had encountered down town. It involved a single punch to the left cheek.

1 New Zealand Police v White [2019] NZDC 6282.

WHITE v NZ POLICE [2019] NZHC 1818 [30 July 2019]

[3] The next incident was two months later when Mr White attempted to shop lift. He was detected but refused to remain on site. Security staff locked the shop doors which eventually led Mr White to arm himself with a hammer. He raised it in a threatening manner, before smashing the glass of an exit door so as to be able to leave.

[4] One month later Mr White went to his former partner’s house. He said he was hungry and the complainant reluctantly let him. Mr White began acting irrationally, was asked to leave but responded by getting angry. He grabbed the woman’s head by each side applying force near the temples. He then left, slamming the door so hard as to shatter its glass. He was arrested soon after and found at that time in possession of the methamphetamine pipe. The pipe is undoubtedly a pointer to Mr White’s erratic behaviour.

[5] Three days later, Mr White was in Court in relation to these matters. Mr White was denied bail, whereupon he leapt over the dock and sprinted from the courtroom. He was apprehended within the courthouse.

[6] The final charge, that of attempting to pervert the course of justice, then occurred. Mr White was in jail and rang his former partner who was the victim of the two assaults. Giving clear instructions as to what to say, all of which is recorded, Mr White induced the complainant to swear a false affidavit recanting her complaints. In terms of motivation, there was one aspect of her original complaint which was incorrect, and it seems Mr White was frustrated about this. That aspect was corrected in her affidavit, and the charge based on it was ultimately dropped. However, the instructions went well beyond that and plainly induced her to lie. Inducing the false affidavit reflects the control Mr White had over his victim and is an aggravating aspect of the charge.

Sentencing

[7] The Judge took a starting point of two years and three months’ imprisonment for the charge of attempting to pervert the course of justice. There were then a series of uplifts in relation to the other charges:

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 White v Police

Details

AGLC: White v Police [2019] NZHC 1818
Case: [2019] NZHC 1818
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Damien Gary White appealed against a sentence of three years and two months’ imprisonment imposed for a series of charges, including attempting to pervert the course of justice. The case involved a series of incidents involving Mr White's former partner, including physical assaults, shoplifting, possession of a methamphetamine pipe, and escaping from court. The final and most serious charge involved Mr White instructing his former partner to provide false testimony in court. The trial judge imposed a sentence that was based on a starting point of two years and three months for the perverting charge, with uplifts for other offences, and then applied credits for guilty pleas and a restorative justice conference, resulting in a final sentence of three years and two months.

The appeal raised several issues, including the starting point for the perverting charge, the uplifts for other offences, and the credit given for mitigating factors. The court found that the starting point for the perverting charge was not open to challenge, and that the uplifts for other offences were appropriate given the need to denounce and deter such conduct. The court also found that the credits for guilty pleas and the restorative justice conference were reasonable, and that the final sentence was within the appropriate range for the offending.

The appeal was dismissed, and the sentence upheld. The court noted that while many of the offences were not severe examples of their type, the charge of attempting to pervert the course of justice significantly elevated the sentencing outcome, given the importance of deterrence in such cases. The court found that the sentence reflected the seriousness of the offending and was not in error.

Orders