Wind v Police

[2019] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2019-412-00019

[2019] NZHC 1819

BETWEEN

ADAM VINCENT WIND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 July 2019
Counsel:	B P Kilkelly for Appellant R D Smith for Respondent
Judgment:	30 July 2019

JUDGMENT OF SIMON FRANCE J

[1]    Mr Wind appeals a sentence of nine months’ imprisonment imposed on charges of male assaults female and intentional damage.1

[2]    Concerning the male assaults female charge, Mr Wind was at his partner’s address. A friend of his partner knocked at the door and Mr Wind answered. A verbal argument ensued. Mr Wind threatened the woman if she did not leave, so she did. However, Mr Wind pursued her, and shoulder charged her from behind, making contact with her head. He then walked off, but the woman yelled at him, accusing him of cheating. Mr Wind ran back at her and kicked her multiple times in the leg.

1      New Zealand Police v Wind [2019] NZDC 8760.

WIND v NZ POLICE [2019] NZHC 1819 [30 July 2019]

[3]    The intentional damage charge arose from an argument with his partner. She locked herself and the children in a room, barricading the door with a chest of drawers. Mr Wind forced the door open, ripping the door off the wall and knocking holes in the plasterboard lining.

[4]    Mr Wind is 36 years old. He has two previous convictions for male assaults female (different victim) and three earlier assault convictions, two of which were in a domestic context. In recent years these domestic violence offences and accompanying breach of community work orders are his only offending. He has not previously been sentenced to a term of imprisonment.

[5]    The sentencing Judge took a nine month starting point for the male assaults female, and then applied two uplifts of one month each. The first was to recognise the past similar offending, and the second to  reflect  that  at  the time of this  offence  Mr Wind was subject to a sentence of intensive supervision. Two months’ discount was deducted was allocated to the guilty plea, resulting in the nine month’ sentence.

[6]    The appellant challenges the starting point for the male assaults female charge. Reliance is placed on Hawea v R and the decisions reviewed therein.2 I have considered those but can discern no error in the starting point:

(a)the charge involves two separate assaults, the second of which involved repeated kicking;

(b)the victim had desisted and left the property when asked, only to then be attacked from behind; and

(c)the nine month figure also incorporates culpability for the intentional damage.

2      Hawea v R [2018] NZHC 770.

[7]    The circumstances of the assault are serious, albeit the consequence was comparatively minor injury, which accounts for the level of charge. For the reasons identified it is more serious than single punch cases where something in the five to six month’ starting point range is more common.

[8]    The balance of the appeal submissions advance the proposition that a community based sanction that continued to support Mr Wind’s rehabilitative efforts was required. The pre-sentence report had recommended community work and supervision. However, it is understandable in my view that the Judge took a dimmer view of what happened, noting that Mr Wind was already subject to a supervision sentence at the time of the assault. The Judge considered, and I agree, that a rehabilitation focused sentence would not here achieve the Act’s purposes. This represented the third male assaults female conviction on domestic partners within two years.

[9]    A pre-sentence report was prepared for the assault offence, and then an update requested for the intentional damage offence. On the second occasion, the writer disclosed considerable experience with Mr Wind and describes him as one who goes from “zero to nine” in seconds but can be then calmed down. There is accordingly hope that anger management measures will eventually succeed although to date they have not. It is not apparent that Mr Wind understands the damage his violence causes, or the consequences that can flow to him.

[10]   I agree with the approach adopted by the District Court. The appeal is dismissed.

Simon France J