R v T HC Invercargill CRI-2008-025-447 [2009] NZHC 199 (23 February 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

_{CRI-2008-025-000447}

REGINA

v

T

Hearing: 16-23 February 2009

Appearances: M J Thomas & M Sinclair for Crown

W N Dawkins & K E Dawkins for Accused

Judgment: 23 February 2009

_{SENTENCE OF HON. JUSTICE FRENCH}

[1] Mr T , you appear for sentence on a charge of assault under s196 of the

Crimes Act.

[2] The facts of the offending are that the man you assaulted was your friend, Mr

Alistair Day.

[3] In the early hours of 2 February 2008 you observed him behaving inappropriately with your wife in the Mossburn Hotel. What you saw heightened suspicions that they were having an affair, something they had previously denied. You loved your wife and were understandably upset. You went into the pub and

_{asked Mr Day to step outside.}

R V T HC INV CRI-2008-025-000447 23 February 2009

[4] At a subsequent police interview you said you only wanted to talk to him in private and had no intention of hitting him.

[5] Outside, there was an exchange of words. Mr Day falsely denied any affair. At one point he said “go on, hit me”. You threw one punch, which struck him on the jaw. It was not a forceful punch, because you had to reach around another person who was standing between you and Mr Day. The punch resulted in only a superficial abrasion. There was no soft tissue injury. Eye witnesses variously described the punch as “soft”, “a nothing punch”, “a lame punch”.

[6] Mr Day collapsed, and a short time thereafter, died.

[7] The autopsy revealed that unbeknown to both you and him, Mr Day was suffering from heart disease. You were charged with manslaughter, with an alternative count of assault. You pleaded guilty to the assault charge, and a jury has found you not guilty of manslaughter.

[8] I therefore must sentence you in light of the jury’s verdict, on the basis that you were not responsible for Mr Day’s death.

[9] In my view you are entitled to significant leniency from the Court. I say that for the following reasons:

i) There were strong mitigating circumstances.

ii) It was a soft punch, a superficial abrasion with no soft tissue injury.

iii) Your previous excellent character – in fact it appears that you have never thrown a punch before in your life.

iv) Finally, I accept that during the past twelve months you must have suffered a great deal of stress as a result of this tragic incident.

[10] Accordingly, I am prepared to accede to Mr Dawkins’ submission. I am satisfied that in these special circumstances a conviction alone is sufficient penalty.

[11] You will therefore be convicted and discharged.

Solicitors:

Crown Solicitor, Invercargill

Bill Dawkins Law, Invercargill