Police v L HC Whangarei CRI 2008-488-74 [2009] NZHC 40 (3 February 2009)

Last Updated: 25 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2008-488-74}

BETWEEN NEW ZEALAND POLICE Appellant

AND L

Respondent

Hearing: 3 February 2009

Appearances: B M O'Connor for the Appellant

B J Hart for the Respondent

Judgment: 3 February 2009

_{ORAL JUDGMENT OF PRIESTLEY J}

Counsel:

B M O’Connor, Marsden Woods, Inskip & Smith, P O Box 146, Whangarei 0140

Email: [e-mail]

_{B J Hart, P O Box 47016, Ponsonby, Auckland 1001. Email: [e-mail]}

NEW ZEALAND POLICE V L HC WHA CRI 2008-488-74 3 February 2009

[1] This appeal has effectively been resolved. However, it is necessary for me to set out some brief details.

[2] The respondent, Mr L , faces two charges of injuring with intent to injure laid under s 189(2) of the Crimes Act 1961. He pleaded guilty to both charges. He was sentenced by Judge de Ridder in the District Court at Kaikohe on

12 November 2008. A sentence of three months home detention was imposed.

[3] The Crown, understandably perhaps, having regard to the grievous bodily harm guidelines laid down in the Court of Appeal tariff case of R v Taueki [2005] 3

NZLR 372 regarded that sentence as being manifestly inadequate. It obtained the consent of the Solicitor-General pursuant to s 115A of the Summary Proceedings Act 1957 to appeal. That appeal was lodged a day late.

[4] The reason for the one day lapse appears to have been incorrect information conveyed to the Solicitor-General by Crown counsel about the actual date of sentence. Although the respondent opposed the inevitable leave application to bring this Crown appeal out of time, in the circumstances, having regard to the outcome, Mr Hart no longer pursues that objection.

[5] The respondent lives in a remote rural locality. Amongst other things he runs pigs on his land. The two victims at the time were aged 16 and 17. The respondent had been concerned for some time about illegal pig hunting on his land by trespassers. Being apparently aware that the two victims had driven on to his land, the respondent and a companion drove up to where the victims’ vehicle was. The victims were there as were a number of pig dogs. Alarmingly, perhaps, one of the victims was carrying a rifle.

[6] Although there was some disagreement between the parties about the accuracy or otherwise of the summary of facts to which the respondent pleaded guilty there was no disputed facts hearing. Instead both counsel (I interpolate the respondent was represented by Ms C Cull at the District Court hearing with a high degree of competence) and the Judge approached the matter on the basis of the

summary of facts and the respondent’s version which was set out both in his counsel’s submission and in the pre-sentence report.

[7] For whatever reason, a serious assault was carried out on both victims by the respondent. One victim was hit on his head with the butt of the rifle. I have seen photographs of the resulting split above the right eyebrow of that victim which required the insertion of eight stitches later that day. The other victim was punched around the head causing a split lip and black eye.

[8] There were, if one analyses the matters contained in [31] of Taueki, the aggravating feature of an attack around the head. Although there was some disparity of size and age between the respondent and his two victims I doubt whether the “vulnerability of victim” factor should be given much weight in these circumstances. Certainly the rifle butt constituted a weapon, but balancing that to a certain extent is the fact that the respondent did not take any weapons with him to the scene which were used. The rifle was a victim’s.

[9] There must have been in a general sense an element of provocation. Certainly from the respondent’s perspective he had the view one of the victims was aware of his views on trespassers on his land. One of the victims, when challenged as to why he was there, apparently suggested that he had been given a key by an authorised user to the gate through which access to the respondent’s land was obtained.

[10] All that said, however, there can be no real dispute to the sentencing Judge’s observation that (at [9]) of his sentencing notes) the respondent “simply lost it and took out your temper and frustration by assaulting these two young people”.

[11] I do not in the circumstances need to say anything further about the Judge’s sentencing methodology. It was common ground the assault sat towards the bottom end of band one of Taueki. There were significant mitigating factors here including the respondent’s guilty plea; the fact that he had no relevant criminal history; helpful testimonials from respected members of the community; and significantly an offer of amends in the sum of $3,000.

[12] The Judge’s sentence was one of three months home detention. Certainly such a sentence in the circumstances, having regard to the policy considerations articulated by the Court of Appeal in Taueki, was at the outer limit of leniency. Significantly too the pre-sentence report recommended community work. Although undoubtedly a sentence of home detention would impose on the respondent irksome restrictions I for my part cannot see why such a lenient sentence of home detention was not coupled with a sentence of community work as the Sentencing Act permits.

[13] There can be no challenge, however, to the Judge in these circumstances arriving at a sentence of home detention given that the appropriate term of imprisonment in terms of R v Taueki would have been a “short” sentence. (See R v Hill [2008] NZCA 41; [2008] 2 NZLR 381.)

[14] Counsel have conferred. It is quite apparent that one of the major drivers of the Crown appeal was the fact that no reparation sentence was imposed by the Judge, despite the offer of amends. The respondent, in the Kaikohe Court, had indicated he was in a position to pay immediately the sum of $3,000 to the victims. There was an indication that he would be prepared to meet a higher reparation order provided he had time to pay and provided he is able to keep ownership of his farm and business. For some reason the Judge made no directions to set up a mechanism to effect that offer of amends, nor did he impose a reparation sentence.

[15] The offer of amends has been renewed today by Mr Hart and Ms O’Connor responsibly advises me that if a reparation sentence were imposed the Crown would not seek to pursue its appeal any further. Nor would it seek to alter the lenient three months home detention sentence imposed.

[16] In those circumstances, and I express my gratitude to both counsel, the appeal is allowed. Leave is granted to the Crown to bring the appeal out of time. The sentence of three months home detention stands. I impose, however, a further reparation sentence in terms of which the respondent is ordered to pay reparation in the sum of $3,000 to be divided equally between each of his two victims. The

payment out to the victims is to be made by the Whangarei High Court Registrar within 14 days. The $3,000 sum is to be paid into Court within seven days.

............................................. Priestley J