Wynd v Police

[2013] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000132 [2013] NZHC 1270

BETWEEN  NATHAN WYND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   27 May 2013

Counsel:                  N Manning for Appellant

LM Mills for Respondent

Judgment:                31 May 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 31 May 2013 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

Public Defence Service, Auckland. Crown Solicitor, Auckland.

WYND v NZ POLICE [2013] NZHC 1270 [31 May 2013]

Introduction

[1]      At 5.30 am on 4 June 2012, the appellant Mr Wynd attacked a workmate by kicking him and punching him with his fists, and rubbing an empty beer bottle in his face.  The attack caused serious injuries.  He was charged with wounding with intent to injure1 and pleaded guilty.

[2]      On 4 April 2013, Judge Dawson sentenced him to two years’ imprisonment at the District Court at Auckland.2   He appeals that sentence.  The essential submission on his behalf is that the least restrictive outcome in all the circumstances would have been home detention, and that this is the sentence that should have been imposed.

[3]      At the time of the offending Mr Wynd was aged 22 and working as a chef. The victim was a workmate.   On the night in question, the victim and Mr Wynd along with other work colleagues had gone to a bar in Galway Street in the central city.  The victim had an unremarkable exchange with a female at the bar.  Mr Wynd took exception to this exchange and became very angry with the victim.  The victim was aware of this and waited in the toilets for some time before then attempting to go home.

[4]      Mr Wynd has training in martial arts and kickboxing.  When the victim went outside Mr Wynd, who had been waiting, attacked the victim with a kick to the head that knocked him off his feet.   As the  victim lay curled up on the ground, he proceeded to punch him several times about the face and head.  He took hold of an empty beer bottle and rubbed it in the victim’s face.

[5]      The attack on the victim was interrupted by a passing Police patrol.  Officers at the scene noted blood on Mr Wynd’s shoes, sweater, bag and hands.  There was a blood-stained beer bottle nearby.

[6]      Photographs on the file show severe injuries to the victim.  He was knocked unconscious, suffered a severe wound to the scalp that required seven stitches, had

swelling  on  both  sides  of  the  face,  a  swollen  and  closed  right  eye,  pain  and

1      Crimes Act 1961, s 188(2).

2      R v Wynd DC Auckland CRI-2012-005-014937, 4 April 2013.

discomfort to his left cheek, and grazing about his head and face.  He was admitted to hospital and spent six days off work.

The decision

[7]      The Judge considered the violence inflicted to have been at a high level.  He found the photographs of the victim and his injuries to be…