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White v The Queen

White v The Queen

Case [2021] NZHC 2079 11 August 2021

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-000028

[2021] NZHC 2079

BETWEEN
BRIAN TUKI WHITE

Appellant

AND

THE QUEEN

Respondent

Hearing: 10 August 2021

Counsel:

S Hunt for the Appellant (by AVL) T Simpson for the Respondent

Judgment:

11 August 2021

JUDGMENT OF GWYN J

(Appeal against sentence)

Introduction

[1] Mr White pleaded guilty to one charge of injuring with intent to injure.1 He was sentenced to two years and three months’ imprisonment by Judge Greig in the District Court at New Plymouth on 16 March 2021.2 He now appeals his sentence on the basis that it is manifestly excessive, as the Judge:

(a)failed to award a discrete discount for the provocation by the victim; and

(b)did not adequately recognise his remorse and willingness to attend a restorative justice conference.

1 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
2 R v White [2021] NZDC 4689.

WHITE v R [2021] NZHC 2079 [11 August 2021]

The offending

[2] Mr White and the victim were known to each other. There was animosity between them, due to a fairly long-running dispute about the treatment by the victim of his dogs, and Mr White’s daughter had discovered the victim abusing his dog.

[3] On 7 March 2019, Mr White was walking with his son and dog. The victim drove past in his vehicle and pulled onto the side of the road. The victim approached Mr White, who was standing in the middle of the road. They had a verbal argument. Mr White used his dog to intimidate the victim. He then headbutted the victim to the mouth. The victim then unsuccessfully attempted to punch Mr White. Mr White struck the victim in the face with a closed fist, causing him to fall to the ground. He then kicked and stomped on the victim’s head and upper body. Following the attack, he and his son left the scene.

District Court decision

[4] The Judge considered that the extent of the victim’s injuries as they have become known over time warranted a much more serious charge than the charge to which Mr White had pleaded guilty. The summary of facts records that, at the time of the incident, the victim suffered minor abrasions to the left side of his body, a fractured left wrist, and a small cut on the back of his head and outside and inside his bottom lip. However, what is of most concern is the head injury suffered, which resulted in significant symptoms later; some two years after the attack, the victim suffers significant bouts of dizziness and nausea, persistent headaches, cervical dystonia (the spasming of neck muscles), visual disturbances, and fatigue. He has also developed post-traumatic stress disorder symptoms as a result of the assault.

[5] The Judge considered the pre-sentence report recommendation of a sentence of community detention with intensive supervision. This report notes Mr White’s positive work in the community, his role as a Māori…

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 Queen

Details

AGLC: White v The Queen [2021] NZHC 2079
Case: [2021] NZHC 2079
Decision Date: 11 August 2021

CaseChat Overview and Summary

The appeal in White v The Queen concerns the sentence imposed on Mr White for injuring with intent to injure, which the District Court Judge deemed to be two years and three months’ imprisonment. Mr White's appeal against the sentence hinges on the assertion that it is manifestly excessive, specifically because the Judge did not account for the victim's provocation and did not recognise his remorse and willingness to participate in a restorative justice conference. The High Court was tasked with determining whether the sentence imposed was justified by the relevant sentencing principles.

The court considered the arguments that the District Court Judge failed to provide a discrete discount for the victim's provocation and Mr White's remorse. The court held that the victim's conduct, while provocative, did not materially reduce Mr White's culpability, as the assault was grossly disproportionate to the verbal argument. The court found that Mr White's remorse was not substantiated, given his continued denial of the extent of his actions and the risk of re-victimisation in a restorative justice conference. The court also noted that Mr White's delay in pleading guilty, while explainable, did not warrant a significant discount in the sentence.

In conclusion, the High Court found that the starting point and the overall sentence were within the appropriate range and not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

Orders