Police v Riddle [2017] NZDC 2797 (1 February 2017)

Last Updated: 24 April 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT TAUPO

CRI-2016-069-001019 [2017] NZDC 2797

NEW ZEALAND POLICE

Prosecutor

v

MICHAEL JOHN RIDDLE

_Defendant

Hearing:	1 February 2017
Appearances:	Sergeant T Garnett for the Prosecutor I Farquhar for the Defendant
Judgment:	1 February 2017

_{NOTES OF JUDGE M A MacKENZIE ON SENTENCING}

[1] Mr Riddle, you appear for sentence today in relation to three charges. There are two charges of assault with a weapon. There are two charges because there are two different weapons used, an arrow and a screwdriver. There is also a charge of injuring with intent to injure. Either of those two groups of offending could be the lead offence. It is important that I do identify a lead offence and for reasons which I will expand upon, I have determined that the two assaults with a weapon is the lead offending in this matter.

[2] I will say something about the facts first. You and the victim have been in a relationship for about eight years, according to the summary of facts. This offending

_{occurred at your home address in Turangi.}

NEW ZEALAND POLICE v MICHAEL JOHN RIDDLE [2017] NZDC 2797 [1 February 2017]

[3] The injuring with intent happened first. This incident is described by the complainant as being Friday 26 August. She was told by you to sit on the couch and you made yourself a cup of coffee in the kitchen and when you finished, you took the remaining water that was left in the jug and poured it over the victim’s feet while she sat on the couch. She described this as being incredibly painful. You then sat opposite her on a separate couch and after interrogating her in the lounge over an extended period of time, you would throw items at her if you did not like her answers, items such as books or plastic CD cases. At the end of this, you told her to get up off the couch while still only wearing a pair of briefs on her bottom half. You told her to leave the house, get into your Land Rover vehicle where she was then to drive around the Turangi township so that everyone could see her topless. She picked up a small briefcase in an attempt to cover herself as she made her way out to the vehicle in the driveway. As she left the front door, she was called back by you and told to sit back on the couch where she was told to stay and not move.

[4] The two charges of assault with a weapon occurred on 4 September of last year. She returned home to your address at about 6.00 pm. On her return, she had trouble closing the newly installed locking mechanism on the large gate at the front of the property. You saw this and you verbally abused her and became enraged because she could not shut the gate properly. You told her to get inside. The complainant described this as leading to an all night captivity session where she had to sit there and take the punishment. Over the course of the evening from 6.00 pm until approximately 4.00 am, you asked her questions, assaulted her and berated her and made fun of her. You took a large knife from the kitchen, proceeded to cut up the victim’s clothes. You took a carbon fibre arrow and in a whipping style with substantial force, hit her to her hands, fingers, thigh and calf area on both legs causing extensive bruising. The arrow is a carbon fibre 16 millimetres with a blunt tip. She was not allowed to cry out or complain while you were physically abusing her.

[5] During this time, you made comments to her that you would take her dog to the rear of the property and cut it open whilst making her watch just to torment her. She told police you would keep a range of weapons next to you on the couch, such items as pliers, sharpened spoons and screwdrivers. At one point you grabbed one of

the screwdrivers and approached the complainant who was still seated on the couch and in a sharp movement, stabbed her in the top of the foot with one swift motion. This ended only when the two of you went to bed at approximately 4.00 am the next morning. The victim suffered extensive bruising to her legs, fingers, stomach and arms. There was a small lump on her forehead and a puncture wound to her foot. After hot water was poured on her foot in the earlier incident, the victim suffered swelling and tenderness to the area which had since healed.

[6] You do have previous convictions for violence and threatening behaviour dating back to 2002.

[7] Given the prolonged nature of the incident on 4 September, which forms the basis of the two assault with the weapon charges, I take the view that that is the lead offending.

[8] The Court of Appeal in Hurinui v R1 have indicated that the principles in Nuku v R2, a tariff case for injuring with intent, could apply to a charge under s 202C Crimes Act 1961, given that it carries the same maximum penalty as injuring with intent to injure under s 189(2) which is the second group of offending.

[9] It was difficult to discern in some respects as to which was the lead offending and that is because I regard the fact that you tipped hot water onto the victim’s foot to be a serious matter and indeed there is a case, Gilbert v Police3, which has some similarities to your situation, where the defendant in that case threw boiling water which landed on the victim’s back in that case. That gave rise to a starting point of two and a half years imprisonment on the basis that the relevant band was band 2 of Nuku.

[10] In terms of, as I have said, the 4 September incident, I am going to use that as the lead offending. In terms of Nuku, it is my view that there are a number of

_{aggravating factors. Mr Farquhar and I are not of one mind about where this sits in}

1 _{Hurinui v R [2014] NZCA 290}

2 _{Nuku v R [2012] NZCA 584}

3 Gilbert v Police [2013] NZHC 2547

terms of Nuku. Mr Farquhar submits that it is at the top of band 1 and the bottom of band 2.

[11] The following aggravating factors are present:

(a) That this was prolonged and gratuitous violence. The use of weapons is inherent in the two charges but the incident occurred over a lengthy period of time. It was prolonged and seemingly it was gratuitous and I would characterise it as cruel violence when it involved things such as tormenting the victim and using the arrow and the screwdriver.

(b) It does involve a breach of trust. The victim is your partner. Over an eight year period, she is particularly forgiving, having read all the material, but that does not derogate from the fact that it does involve a breach of trust.

(c) In my view, there is an element of victim vulnerability as well, because it involves an element of you holding her captive or unlawfully detaining her. As has been said in other cases, the victim is entitled to feel safe in her own home and that is far from the situation that evening.

(d) It did involve, as Mr Farquhar rightly noted, some serious injuries.

They are not permanent or life threatening, but there was certainly extensive bruising to various parts of her body, as described in the summary of facts; legs, fingers, stomach and arms, a lump on her forehead and a puncture wound to her foot.

[12] The next step is not only to identify the aggravating factors, but to weight them because this is a situation where, in my view, the offending is fairly and squarely in band 2 and in the upper part of band 2 of Nuku. Possibly, it could even go into band 3 of Nuku, given the prolonged violence on that particular occasion, but it is definitely towards the upper end of band 2.

[13] For that reason, I am going to start at two years imprisonment for the

4 September offending. I am going to uplift that by 12 months for the injuring with intent offending. On a standalone basis, in my view, throwing hot water over your partner’s foot could in and of itself justify a starting point well beyond the 12 month mark. That is fairly and squarely in band 2 of Nuku as well and could justify in and of itself a starting point of around the two year mark, having regard to the Gilbert v Police decision I referred to a little earlier.

[14] However, I must bear in mind the totality principle and, accordingly, I will uplift the two year start point by 12 months to a total adjusted starting point of three years imprisonment.

[15] An uplift, in my view, is required to reflect your previous history. Although it was some time ago, that was serious. I am going to uplift the start point by three months for that. That is a total adjusted starting point of three years and three months. So that is 39 months.

[16] I am going to give you a credit for your personal health issues. I have thought long and hard about that because I am not clear from all the information I have had that there is any particular nexus between your health issues and the offending. However, I will give you a credit for that and remorse, and I am going to take off five months for that. Lastly, I am going to give you a credit for your guilty plea of eight and a half months. That is an end sentence of just over two years and I am going to round that down from two years, one month and two weeks to two years and one month.

[17] Even if it had got below the two year mark to consider home detention, I would not have imposed home detention I will say for the sake of completeness. I note Mr Farquhar indicates that he is not realistically pursuing on your behalf a home detention sentence today, because the address is entirely unsuitable for the reasons which are set out in the pre-sentence report and that is not because of the previous family violence callouts to the address.

[18] I accept that you and the victim have not been involved in any previous family violence incidents because that is set out in the summary of facts. The proposal is that the victim and you would be there at the address and even if she moved out, it is by no means a foregone conclusion that there would not be contact between the two of you.

[19] That is not the reason, however, that I would not be prepared to impose home detention. This was serious prolonged and gratuitous violence and, quite frankly, it is simply too serious to contemplate a sentence of home detention. Deterrence, denunciation and accountability are important aspects of the sentencing process, particularly when there is a previous history of violence. There is also a need to protect the victim even if she does not see currently that she needs any form of protection. A community-based sentence would be an insufficient sentencing response, given the serious level of prolonged and gratuitous violence and having regard to the other aggravating factors that I have referred to. You treated the victim in a degrading and demeaning fashion in an overall sense and home detention simply is, as I have said, an insufficient response for the sentencing needs of this case.

[20] Accordingly, you are sentenced to two years and one month imprisonment in relation to CRNs ending 1134 and 1286, the assault with a weapon charges. In relation to CRN ending 1287, which is the injuring with intent, you are sentenced to

12 months imprisonment which is concurrent. That means at the same time.

M A MacKenzie

District Court Judge