White v The King - [2023] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-44

[2023] NZHC 1706

BETWEEN
JOSHUA WHITE

Appellant

AND

THE KING

Respondent

Hearing: 4 July 2023

Appearances:

C Taylor for Appellant

N L Jamieson for Respondent

Judgment:

4 July 2023

JUDGMENT OF JOHNSTONE J

Solicitors:
Crown Solicitor, Whangarei

WHITE v R [2023] NZHC 1706 [4 July 2023]

[1] Joshua White pleaded guilty to charges of: intentional damage;1 assault on a person in a family relationship;2 breach of a protection order (x 3);3 assault with a weapon;4 and wilful damage (x 2).5

[2] On 19 April 2023, Judge D J McDonald sentenced Mr White to 28 months’ imprisonment.6 He appeals against that sentence. The Crown opposes.

The offending

[3] On 29 January 2021, Mr White’s former partner was granted a protection order against him. At around 8.45 pm on Monday, 1 November 2021, Mr White arrived at his former partner’s residence uninvited. He was intoxicated. He kicked his way in through the front door, breaking it into two pieces (the intentional damage offence). Inside the home, he found his partner who was in the process of trying to leave out the back door. He grabbed her handbag, ripping the strap from it and causing its contents to scatter on the ground. He “swung” at her. These events comprise the assault on a person in a family relationship offending.

[4] Mr White proceeded to grab items from around the house including bottles of alcohol from the fridge. He threw two glass bottles at his former partner, one of which hit her in the forearm, the other smashing on the floor. Mr White’s attack with the bottle amounts to the first of two incidents covered by the representative assault with a weapon charge to which he pleaded guilty.

[5] Following the incident on 1 November 2021, he left abusive voice messages on his former partner’s phone, during the evenings of 28 November and 29 November 2021 and 5 January 2022. Those events were reflected in the breaches of protection order charges.

1      Crimes Act 1961, s 269(2)(a). Maximum penalty seven years’ imprisonment.
2      Section 194A(1). Maximum penalty two years’ imprisonment.
3      Family Violence Act 2018, s 112(1)(a). Maximum penalty three years’ imprisonment.
4      Crimes Act 1961, s 202C(1)(a). Maximum penalty five years’ imprisonment.
5      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
6      R v White [2023] NZDC 7392.

[6] Around seven months later, in August 2022, it appears Mr White had reconciled with his victim to the extent that she anticipated him being at his home in Woodville, Whangarei when she returned there at around midday on 14 August 2022. An argument arose about his drinking. He was asked to, but declined, to leave. The victim called Police. While she was on the phone, Mr White picked up a piece of wood and swung it at her hand, causing the phone to fall to the floor…

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 The King

Details

AGLC: White v The King [2023] NZHC 1706
Case: [2023] NZHC 1706
Decision Date: 4 July 2023

CaseChat Overview and Summary

Joshua White appeals his sentence for multiple offences, including intentional damage, assault on a person in a family relationship, breaches of a protection order, assault with a weapon, and wilful damage. The Crown opposes the appeal. The court must determine whether the sentence imposed at first instance was correct or if it should be altered. The appeal court considers whether the original sentence is within the acceptable range based on established sentencing principles. The court analyses the District Court’s approach, which used the representative assault with a weapon charge as the starting point and applied uplifts and discounts for other charges, previous offending, and a guilty plea. The appellant argues that the starting point was too high and that his willingness to engage in restorative justice and his rehabilitative efforts warranted a further discount. The Crown contends that the District Court’s approach was correct. The appeal court finds that while the District Court did not mechanistically apply the case of Nuku v R, it appropriately considered the implicit nature of the weapon use in the charge. The court also notes that the District Court’s starting point and uplifts were within an acceptable range, and the sentence was justified by accepted sentencing principles. The appeal court dismisses the appeal, confirming that the original sentence was properly justified.

Orders