HENRY V POLICE HC CHCH CRI-2008-412-000005 [2008] NZHC 253 (5 March 2008)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                             CRI-2008-412-000005



                              SHARI LEIGH HENRY



                                           v



                          
            POLICE



Hearing:       5 March 2008

Appearances: S A Saunderson-Warner for Appellant
             R D Smith for Crown

Judgment:      5 March 2008


            ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN



[1]    Shari Leigh Henry appeals against
an effective sentence of nine months'
imprisonment imposed upon her in the District Court. She was sentenced on a
charge of threatening
to kill, a charge of assault using a bottle as a weapon, and a
charge of assault under the Crimes Act 1961.


[2]    On the threatening
to kill and the assault with a weapon charges the Judge
imposed concurrent sentences of nine months' imprisonment. On the assault
he
imposed a sentence of six months' imprisonment. He imposed six months' special
conditions, plus standard release conditions until
the sentence expiry date. These
were that the appellant take such treatment and counselling, including residential
treatment, as
may be directed by her probation officer.



HENRY V POLICE HC CHCH CRI-2008-412-000005 5 March 2008

[3]    The Judge was faced
with an extremely difficult sentencing task.           The
appellant was aged 17 at the time of this offending. It is only with reluctance
that a
Judge would imprison somebody of that age for offending of this sort. But the
appeal itself acknowledges that the Judge was
really left with no alternative. That is
because the argument is not that there should have been a sentence other than
imprisonment
­ rather that the effective sentence of nine months was manifestly
excessive.


[4]    These events occurred on 18 September last
year. One of the victims, the
male, is aged 20; the other a female aged 19. The male victim was a former
boyfriend of the appellant,
and she had lived at the address. The appellant was told
not to enter the address by one of the victims. This was ignored. Once inside
she
became angry. The appellant abused the female and without warning or provocation
punched her several times around the head. She
then grabbed some empty stubby
bottles and began striking the male victim with the bottles, until one broke at the
base of his skull.
The appellant then proceeded to throw as many bottles as she
could around the room, hitting the wall and the victims. When she ran
out of bottles
she went to where the male kept his hunting gear and pulled out what is described as
a large "stick" knife. This was
held upright, with the blade pointing down, and she
went over to the female victim. She held the point of the knife on the victim's
head
and threatened her. The knife was then thrown on the floor, knowing that the police
were on their way, and the appellant left.


[5]    The male victim was treated for a broken nose and lacerations to the back of
his head. He also suffered from other bodily
bruising and scratching. The female
victim was described as suffering from superficial bruising and redness to the face.


[6]  
 When spoken to by the police the appellant proffered no explanation for the
offending. No real issue has been taken with the aggravating
and mitigating factors
that have been put forward in this case to the sentencing Judge. The aggravating
features are there are two
victims; there was actual and threatened use of violence;
there was an unlawful presence in the house; and the offending took place
while the
appellant was subject to a previous sentence of community work.

[7]    The Judge properly put the offending into perspective.
          Amongst other
offences, this young lady last year had convictions for assaulting the police and
threatening to kill. That
threatening to kill apparently occurred while she was on bail
for these present offences.


[8]    On behalf of the appellant it
is argued that the starting point and end point are
too high in this case; a complaint is made that the allowance of 25 per cent was not
great enough for
the guilty plea; that she is young, and that despite a difficult
upbringing there is some indication in the sentencing notes of improvements.
On
that basis it is submitted that a sentence of less than nine months should have been
imposed. In the main that is done by a reliance
on the decision of my brother, Wild
J, in Moase v Police HC Wanganui, CRI-2004-483-000013, 8 September 2004.
There, an overall sentence
of five months was imposed for an unprovoked assault
with a stubby beer bottle. There was one blow to the head on a street footpath.
This
case is said by counsel to be marginally more serious. It is more than marginally
more serious. This involved effectively home
invasion, because the appellant was
told not to enter the house; it involved sustained violence; and it involved the injuries
that
I have already described.


[9]    It is not sufficient to simply point to another case and say that the sentence
imposed by this
Judge was too severe. What must be shown is that the sentence is
out of range. When one considers a large number of the authorities
that were
presented in this particular case, it does not seem to me to be out of range. Nor can
there be a complaint in relation
to the allowance made for the guilty plea. As the
Court of Appeal has stressed in R v Fonotia  [2007] 3 NZLR 338, it is not a
mathematical exercise and there is a great range of allowance. While I accept there
was an amendment to the more serious
charge to a lesser charge at depositions that
led to guilty pleas, there was nothing to prevent this young woman pleading to the
other charges at an earlier date. The plea was some months later.


[10]   It is not for this Court on appeal to simply substitute
its view of what is an
appropriate sentence. This Court can only interfere if the sentence is shown to be
manifestly excessive, and
I stress the word manifestly. While it is possible I would
have reached a lower result myself, I do not consider the sentence imposed
in this

case can be said to be manifestly excessive. It was within range, albeit at the top
end. It follows that the appeal must
be dismissed.




Solicitors:
Aspinall Joel, Dunedin
Crown Solicitors, Dunedin