R v Hall [2016] NZDC 17402 (7 September 2016)

Last Updated: 19 February 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-002583 [2016] NZDC 17402

THE QUEEN

v

_{PATRICK HALL}

Hearing:	7 September 2016
Appearances:	E Henderson for the Crown L Heah for the Defendant
Judgment:	7 September 2016

_{NOTES OF JUDGE P R KELLAR ON SENTENCING}

[1] Mr Hall, you are for sentence on two charges that arose out of the one incident, the one that you injured the victim with intent to cause her grievous bodily harm. The maximum penalty for that charge is a term of imprisonment of 10 years. The other a charge of threatening to kill. You also appeared for sentence in respect of a charge of driving whilst suspended. In light of the very recent judgment of the Court of Appeal in relation to the validity of service of suspension notices I will not deal with that matter today. That is simply adjourned and you are remanded to

4 October at 9.00 am.

[2] As to the violence and threatening offending you and the victim had been in a relationship for about a year during which you had lived together. At about 5.30 pm on 12 March 2016 the two of you were at an address where you had been living for the prior two weeks. While upstairs in the bedroom the two of you got into an

_{argument. The argument turned physical. You picked up a steel or aluminium}

R v PATRICK HALL [2016] NZDC 17401 [7 September 2016]

broom handle and started striking the victim with it a number of times on her legs. You also kicked her a number of times in the face and head. The caption summary records that she grabbed hold of a pillow and covered her head to protect herself from being kicked in the face and on the side of the head. During the attack you yelled at the victim saying that if she did not be quiet you would kill her.

[3] The victim was taken to hospital due to the nature of her injuries. She suffered extensive swelling to her head and face and had several large red swollen welts down her legs. There was also a gash some two or three centimetres in length on the rear of her thigh. In addition she sustained bruising and soreness to her shoulders, back and torso.

[4] Ms Heah has forwarded to me or handed to me a letter said to have been written and addressed to the Presiding Judge, said to have been written by the victim in which she refers to an argument having developed during which, and in a rage, she went to her handbag to retrieve a knife. She says that as she went for the blade you struck her and that it was you who feared for the danger that she put you in. This is not something that has been part of the case before now. I understand that the victim is unavailable. She has not seen a Victims Advisor. In addition to that she had not made a statement to police and there is no written formal statement from the victim on the prosecution file. For present purposes I attach no weight to it.

[5] The aggravating factors that emerge from the offending are these. The first, that the offending involved the use of what is a weapon, namely the broom handle. It is true that a broom handle is not as lethal a weapon as a firearm, a knife or a bat would be. I also accept the submission that the use of the broom handle was not premeditated in the sense that it was brought to the scene with the intention of using it. I accept Ms Heah’s submission that your use of it was a spontaneous reaction to what occurred between you and the victim.

[6] The second aggravating factor is the extent of the harm. I have only information as to the physical harm to the victim who suffered extensive swelling to her face and head, welts and gash to her head.

[7] The third aggravating factor is that the offending, albeit not involving the broom handle, involved an attack to the head so I have just outlined the caption summary referred to you as having kicked the victim a number of times to the face and head.

[8] The last aggravating factor is the extent of the violence. The violence was not brief but, that said, nor was it particularly prolonged.

_{[9] There is a judgment of the Court of Appeal that guides the starting point, it is}

_{R v Taueki.}1

_{The Court made statements at paragraphs 37 and 39 of its judgment that}

_{are relevant. At paragraph 37 the Court of Appeal stated this:}

A domestic assault by an offender on his or her spouse or partner, or former spouse or partner, which is impulsive, does not involve the use of a weapon and does not cause lasting injuries but where the victim is properly classified as vulnerable may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon, but again no lasting injuries, a higher starting point could be expected, perhaps five years or more.

At paragraph 39 the Court of Appeal said this:

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in Band 2. The appropriate point in that Band would require a valuation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be the higher end of Band 2.

[10] I need to consider what are the objectives of sentencing you or what principles from the Sentencing Act 2002 guide me. The first, in terms of sentencing objectives is that the sentence must hold you accountable for the offending, it must promote in you some sense of responsibility for it and an acknowledgement of the harm occasioned by it. I am very mindful of the interests of the victim. I say that regardless of the matters expressed in the letter said to be written by her.

[11] The sentence should also denounce what is serious violent offending and act as a meaningful deterrence. I say that because you have convictions for male

assaults female and common assault. That said the sentencing should also promote your rehabilitation and reintegration into the community.

[12] I outlined what I regard as the aggravating factors of the offending because I am required to make an assessment of its overall seriousness. I have to be consistent in the way that I sentence you and I will get on to that in a moment and I also have to impose on you the least restrictive outcome that is appropriate in the circumstances.

[13] In terms of comparable cases counsel have put before me a number of cases, two of which I am going to refer to specifically. In R v Singh [2015] NZHC 1641 the offender kicked the victim in the stomach and picked up a cricket bat and struck her. He then hit the victim, who was his wife, once more with the bat to the forearm and back of her head shouting he wanted to kill her. She was bleeding from a head wound and lost consciousness. He then began strangling his wife to the point where her eyes rolled back in her head. As a result of the attack the victim suffered no long-term injuries.

[14] The learned High Court Judge considered the offending to fall at the top of Band 1 as it involved an assault with a weapon on a vulnerable and defenceless witness. The High Court Judge considered a starting point of four years' imprisonment on the injuring charge was appropriate.

[15] In Kulimoeanga v R2 an overall starting point of four years imprisonment was imposed on one charge of injuring with intent to cause grievous bodily harm and one of unlawfully carrying a firearm. The offender had gone to the victim’s home armed with a baseball bat. There was a co-offender who had a shotgun. The appellant struck the victim’s neck with the baseball bat. The aggravating factors clearly were the attack to the head, the use of a weapon, the premeditation and, despite repeal of

_{the legislation, the home invasion aspect to the offending.}

[16] The Court said that there could be no quibble with a starting point for the injuring with intent charge of two and a half to three years' imprisonment. The Court

considered that the sentencing Judge was entitled to treat the presence of a firearm either as an aggravating factor or as requiring an uplift from the starting point.

[17] The offending in that case, in some respects, could be regarded as somewhat less serious than yours. In that case a weapon was used to strike the victim’s head and that is a very serious aspect but the weapon was used to strike the victim only once and the victim sustained no injuries beyond feeling dazed. Furthermore the offending did not occur in the context of a domestic relationship. Despite Ms Heah’s submission to the contrary I am very firmly of the view that an element of vulnerability exists by reason of that factor alone. Indeed, if the letter was written by the victim that has been handed to me today, that amply demonstrates the point.

[18] I have already referred to your criminal history but to amplify that you have a conviction for assaulting a police officer in 2011; contravening a protection order in

2010; some sexual offending in 2009 that is not relevant to today’s exercise; male assaults female in 2008; common assault 2010; and further male assaults female offending as long ago as 1993 and more recently in 2003.

[19] The provisional advice to the courts informs me of a number of things. It assesses you as being at high risk of offending. It also states that you are remorseful for the harm that was occasioned but have tended to blame the victim and you have displayed limited insight.

[20] As it happens I and Ms Heah are not far apart in terms of the starting point. I have started with the injuring with intent to cause grievous bodily harm offending of three years' imprisonment. The threat to kill, though serious of itself, is far from the worst of its kind. It seems a spontaneous reaction to your state of mind and I am minded to impose a concurrent starting sentence of three months' imprisonment in respect of that.

[21] An uplift is appropriate reflecting your relevant history of violent offending. I have uplifted the three year starting point by three months to reflect that factor. So that is an overall starting point of three years and three months' imprisonment.

[22] Everyone seems agreed that full allowance of 25 percent should be given for your plea of guilty. I have deducted what is mathematically slightly more than that of some 10 months leaving an overall end sentence on the injuring with intent to cause grievous bodily harm charge of a sentence of imprisonment of two years and five months and a concurrent sentence of imprisonment of two months for the threatening to kill charge.

[23] Given all of the circumstances that I have outlined it seems that it is necessary to make a protection order in favour of the victim. She has not expressed whether she has no objection to the making of the order. Through your counsel you have indicated you have no opposition to it and I, therefore, make a protection order.

[24] Mr Hall, you are convicted and sentenced to imprisonment for two years and five months with a concurrent sentence for the threatening to kill of two months imprisonment.

P R Kellar

District Court Judge