Wi v Police

[2014] NZHC 431

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-1 [2014] NZHC 431

BETWEEN

THOMAS WI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 March 2014
Appearances:	P J A Buckle for Appellant T C Tran for Respondent
Judgment:	11 March 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

THOMAS WI v NEW ZEALAND POLICE [2014] NZHC 431 [11 March 2014]

[1]      Mr Wi pleaded guilty in the District Court to charges of assaulting his partner and threatening to cause grievous bodily harm to her.  He also pleaded guilty to a charge of breaching a protection order that had been issued in favour of his partner.

[2]      On 18 December 2013, Judge Connell sentenced Mr Wi to eight months

home detention.1

He appeals to this Court against the sentence on the basis that the

Judge erred in principle in selecting the starting point appropriate to the offending. He also argues that the Judge gave him insufficient credit for the period he had

already served in custody before being sentenced.

Background

[3]      The charges have their genesis in an incident that occurred on the evening of

25 June 2013.  On that date, Mr Wi went to his partner’s home.  She returned a short time later, and an ugly incident then occurred.   Mr Wi became angry and jealous towards his partner because he had found some condoms at her address.  He and his partner were not living together at the time.   A series of events then occurred in which Mr Wi demeaned his partner.  He accused her of being unfaithful and made sexual advances towards her in which he demanded that he suck his penis.   She retreated into the bathroom and locked the door, but he continued to attempt to gain access to her.  At one stage, he stabbed a door behind which she was hiding with a knife with such force that the knife broke and remained embedded in the door.  On two occasions, she endeavoured to escape the house.

[4]      Ultimately, Mr Wi’s partner was able to seek refuge at a neighbour’s house. As a result of the incident, she ended up with moderate bruising to both knees and also sore neck muscles because at one stage during the incident Mr Wi had gripped her clothing tightly around her neck.

The structure of the sentence

[5]      The Judge noted that the offending occurred in circumstances where Mr Wi was subject to a protection order designed to provide his partner with protection

against violence on his part.  The Judge considered that the offending required an

1      New Zealand Police v Wi DC Hamilton cri-2013-068-000214, 18 December 2013.

overall starting point of 20 months imprisonment.  He gave Mr Wi credit of three months to reflect the fact that he had been in custody for nearly six months.  He also recognised that fact by not imposing a sentence of community work.

[6]      Although  Mr Wi  had  pleaded  guilty,  the  Judge  did  not  refer  directly  to providing Mr Wi with a discount to reflect guilty pleas.  This is notwithstanding the fact that earlier in his sentencing remarks the Judge had said that Mr Wi would receive credit for the pleas.  It is possible that the Judge provided a further discount of one month to bring the end sentence down to 16 months imprisonment.  I say this because the Judge ultimately imposed a sentence of eight months home detention on the charge of threatening to cause grievous bodily harm.  It is possible that he arrived at that sentence using the rule of thumb principle that a sentence of home detention will equate to approximately one-half the period of imprisonment that would otherwise be appropriate.

Decision

[7]      Given the sustained nature of the incident that gave rise to the charges, there can be no dispute that the starting point that the Judge identified was appropriate. Unfortunately, however, the Judge based his sentencing remarks on a summary of facts that contained two passages that the prosecution and defence had earlier agreed would be deleted.

[8]      The first of these was that Mr Wi told his partner at one stage that he felt like “stomping on her head”.   The summary also referred to the fact that at one stage when Mr Wi’s partner walked away from the property, he came up behind her and shoved her with such force that she landed on her knees on the concrete and then fell forward  onto  her stomach.   The Judge referred  to  both  of these matters  in  his sentencing remarks  notwithstanding the fact that, unknown to him,  counsel had agreed that they would not form part of the summary for sentencing purposes.

[9]      I accept that these two matters do not loom large in the overall series of events that occurred on 25 June.  They may well have had some resonance with the Judge, however, because of the fact that Mr Wi’s partner was pregnant at the time of the incident.  The Judge may have viewed the fact that Mr Wi forced his partner to

fall onto her stomach as being a significantly aggravating factor.  I therefore accept, as does counsel for the respondent, that in fixing the starting point the Judge may have taken into account two factual matters that should not have been before him. These did not produce a sentence that can realistically be viewed as manifestly excessive.   Nevertheless, Mr Wi can justifiably feel a sense of grievance that the sentence that he received was calculated, in part at least, with reference to matters that the Judge should not have taken into account.

[10]     Two further factors persuade me that it is appropriate to reduce the sentence that Mr Wi received.  The first of these is that the Judge made an allowance of just three months for the fact that Mr Wi had been in custody for a period of nearly six months.  The Judge did not apply a greater discount for two reasons.  First, he took the view that the remand in custody occurred as a result of Mr Wi’s own actions, and that Mr Wi was therefore responsible for them.  Secondly, he indicated that he would take the issue into account by not imposing a sentence of community work.

[11]     I accept that the latter was a valid reason not to give Mr Wi further credit for the time that he spent in custody.  I consider, however, that the reason why Mr Wi was in custody was not a factor that should have been taken into account when assessing whether he should receive credit for the time spent in custody on remand. Regardless of the reason why Mr Wi was in custody, he served an effective sentence of 12 months imprisonment by remaining in custody whilst he was on remand.

[12]     Thirdly, I am left in doubt as to whether the Judge did in fact provide Mr Wi with any credit for his guilty pleas.   If the Judge reduced the sentence from 17 months imprisonment by just one month, it represents discount of approximately five per cent.  Although the pleas were late, they nevertheless saved Mr Wi’s partner the ordeal of giving evidence.  Ordinarily, even late guilty pleas will attract a discount of around ten to 15 per cent.

Decision

[13]     When all of these factors are taken into account, I consider that the interests of justice require an adjustment to be made to the sentence that Mr Wi ultimately

received.  I propose to reduce the sentence by two months to reflect the factors to which I have referred.

Result

[14]     The sentence of eight months home detention is accordingly quashed.  In its place, Mr Wi will serve a sentence of six months home detention.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:
P J A Buckle, Hamilton