HEREWINI V NZ POLICE HC HAM CRI 2006-419-61 [2006] NZHC 487 (11 May 2006)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                 CRI 2006-419-61



                          TIA MEREHINE HEREWINI
                                 Appellant



                               
           v



                             NEW ZEALAND POLICE
                                  Respondent



Hearing:       11
May 2006

Appearances: T Sutcliffe for the appellant
             M Curran for the respondent

Judgment:      11 May 2006


    
              ORAL JUDGMENT OF ELLEN FRANCE J



[1]    The appellant pleaded guilty to one charge of injuring at a time when
showing
reckless disregard for the safety of the victim contrary to s 189(2) of the
Crimes Act 1961.


[2]    The appellant was sentenced
to six months imprisonment. She was granted
leave to apply for home detention. The sentence start date was deferred to 12
midday
on 12 May 2006.         The deferral was to enable the appellant to make
arrangements for the care of her three children. The appellant
appeals against the
sentence on the grounds that it was manifestly excessive. There was also an appeal




HEREWINI V NZ POLICE HC
HAM CRI 2006-419-61 11 May 2006

against the decision to refuse to defer commencement but that has been abandoned in
light of R
v Morgan  [2004] 3 NZLR 738.


Facts


[3]     The bald facts are that the appellant sought out the complainant and attacked
her with a softball bat hitting her
around the head several times. The victim fell to
the ground and the appellant continued to hit her with a total number of blows
of
over ten.   The complainant sustained significant injuries although not of a life
threatening or long term nature.


[4]     The
context of this offending, as the Judge observed, was a situation where
the appellant was in a fragile state.     She was then provoked
by the fact the
complainant had slept with the appellant's then partner of some years (and the father
of her children) and appeared
to the appellant to be seeking to pursue a relationship
with the appellant's former partner. She lost control and the offending occurred.


Sentencing remarks


[5]     The learned District Court Judge observed that for offending involving this
level of violence in which
the head area was targeted, a sentence of 12 to 18 months
imprisonment was within range. However, the Judge gave the appellant credit
for
her guilty plea, the fact she was provoked, and for what the Judge described as
"co mpelling" personal circumstances. The sentence
of six months imprisonment
with leave to apply for home detention and a brief deferral was imposed.


Prison term


[6]     The appellant
submits that the Judge, whilst acknowledging the early guilty
plea and the provocation, did not take into account the absence of
any prior
convict ions or the appellant's remorse. It is also submitted that insufficient weight
was given to her family circumstances.

[7]      It is accepted, on behalf of the appellant, that there is no tariff for this
offending; a range of sentences is imposed;
and so it is a difficult area in which to fix
an appropriate term. However, it is submitted that consideration of the authorities
suggests that a non-custodial sentence would have been appropriate in this case. It is
submitted that the cases relied on by the
Crown involve quite a different factual
matrix and that in all the circumstances of this case a sentence short of imprisonment
should
have been imposed.


[8]      The respondent says that in sentencing in this area the following factors are
relevant: the level of
violence; use of a weapon and type; the nature of the attack
and its length. It is submitted this was a prolonged and violent attack
of some three
to five minutes giving more indications of premeditation than otherwise apparent. It
is submitted the appellant has
sighted the victim, armed herself and, after the victim
has fallen, she has continued to hit the complainant.


[9]      In the context
of the nature of the attack it is submitted that the term imposed
was the least restrictive one available. Provocation was taken
into account and a
significant reduction given off the starting point. The fact there is no reference to the
appellant being a first
time offender is not relevant because significant credit was
given.


Discussion


[10]     As both counsel accept there is no particular
tariff for this offending
reflect ing the varied circumstances of offending under s 189. Given the nature of the
injuries and the
fact a baseball bat was used on the head area, a term of
imprisonment, and one of the term imposed by the Judge, was within the available
range. It was a stern sentence given the combination of the appellant's personal
circumstances and what had happened between the
complainant and her former
partner which led to a somewhat extreme situation. The Judge, however, has taken
provocation and personal
circumstances into account and implicit in that is an
allowance for the Judge's assessment of the appellant's remorse.

[11]   
 There is, however, one qualification I make. That is that there has been no
express reference to the fact the appellant is a first
time offender. It is probable that
this was part of the Judge's thinking in the considerable reduction given for the
mit igat ing
features. In this case, however, I have concluded it is necessary, to avoid
the risk of the appearance that this issue has not been taken into account,
to reduce
the term of imprisonment by 1 month to 5 months imprisonment. I do not consider it
has been shown that any further adjustment
is necessary.


Result


[12]     The appeal is accordingly allowed to the extent only that the term of
5 months is substituted for
that of 6 months.        The sentence otherwise remains
unchanged.




________________________
                 Ellen France J


Solicitors/Counsel:
Crown Solicitor, PO Box 19173, Hamilton
T Sutcliffe, PO Box 19021, Hamilton