Searancke v Police HC Wellington CRI 2010-485-138 [2011] NZHC 130 (22 February 2011)

Last Updated: 25 May 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2010-485-138}

KYLE SEARANCKE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 22 February 2011

Counsel: N Sainsbury for Appellant

[ ] for Respondent

Judgment: 22 February 2011

_{ORAL JUDGMENT OF RONALD YOUNG J}

[1] Mr Searancke was on home detention for assault on his partner and prohibited from contacting her when he went to her house one morning. She asked him to leave but he refused. He assaulted her and when she was able to escape and run from the house he took their 18 month old child. Eventually the child was returned. As a result Mr Searancke was sentenced to 23 months, two weeks’ imprisonment for assault with intent to injure, charges of breaching a protection

_{order and wilful damage.}

KYLE SEARANCKE V NEW ZEALAND POLICE HC WN CRI 2010-485-138 22 February 2011

[2] The appellant’s case is that the Judge adopted an error filled process in

reaching such a sentence and as a result imposed a manifestly excessive sentence.

Facts

[3] All of the offending occurred on 1 October 2010. In the early hours of the morning the appellant breached home detention and went out drinking. He consumed further alcohol in the morning; again in breach of his home detention conditions. When the appellant should have been attending a rehabilitation programme he went to the victim’s house. She told him to leave but the appellant took no notice of her. This was in breach of the protection order granted in 2009 to protect the victim and her child.

[4] An argument began. The appellant punched a hole in the wall trying to intimidate the victim. She then ran to her bedroom to phone the police. The appellant followed and began smashing the victim’s property. He grabbed the victim, pulled her towards him, pinned her down on the bed by placing his hands around her throat and held her down. She struggled and eventually managed to escape and ran to a neighbour’s house seeking refuge there. She then realised she had left her 18 month old child in the house. The victim waited for the police to arrive to retrieve the child but by then the appellant had taken the child. The police searched the area for an hour without success. Eventually the appellant returned the child and he was arrested.

[5] The appellant and the respondent agree that the Judge’s analysis and approach to sentencing went somewhat off course. The Judge took as the lead offence assault with intent to injure. Unfortunately he identified the wrong maximum penalty (two years’ imprisonment when it was three years). This was no doubt caused by the same error in the police summary of facts.

[6] The Judge identified the aggravating factors of the assault itself. He uplifted that sentence to take account of the other background to the offending including the other charges. Confusingly he then considered the other charges added a further

13 months for this offending to the start 18 months’ sentence, reaching an end point of 31 months’ imprisonment.

[7] The Judge then gave a discount of 20% for the plea of guilty and one month for remorse. Unfortunately the Judge’s arithmetic was then an error. The seven month discount from the 31 months should have given a net sentence of 24 months’ imprisonment. The Judge calculated this as 30 months’ imprisonment however.

[8] The Judge concluded though that this was a case where post release conditions should be imposed. He reduced the sentence of 30 months’ imprisonment to 23 months and two weeks’ so that he could impose appropriate special post release conditions. This was a further error of approach.

[9] The process by which the Judge reached his final sentence was flawed. The only appropriate course for me is to re-sentence the appellant keeping in mind though the final sentence the Judge imposed.

[10] There is no doubt that beyond the assault the circumstances under which it occurred were extremely serious. The assault itself was of moderate seriousness (without the features identified below justified perhaps a six month to nine month sentence of imprisonment) but the surrounding circumstances were:

(a) its occurrence in the victim’s home;

(b) the fact that it occurred when he was asked to leave; (c) the breach of privacy and security of her bedroom; (d) that the couple’s child was in the next room;

(e) the unlawful taking of the child; and

(f) that the appellant was subject to a sentence of home detention and prohibited from contacting the victim (through the protection order) when the violence occurred.

[11] The awkwardness for a Judge sentencing the appellant is that the surrounding aggravating features almost swamp the seriousness of the assault itself.

[12] In the circumstances I consider that a start sentence of two years’ imprisonment is well justified as a sentence for all of the appellants’ actions that day. The surrounding circumstances add very greatly to the plain facts of the assault itself.

[13] An uplift for past offending is justified. In 2008 on three occasions the appellant assaulted women. In 2007 he was convicted of possession of a knife. For the violent offences in 2008 he was sentenced to community work and community detention, both of which he breached. In 2009 he was convicted of possessing an offensive weapon and behaving threateningly, fighting in a public place and behaving in a disorderly manner. Then, in 2010 he was convicted of disorderly behaviour and common assault, the later relating to this victim. A further one month uplift for that offending is the least that could possibly be imposed. That makes a total sentence before mitigation of two years and one month imprisonment.

[14] From that one could justify, in my view, only a deduction of 20% for his guilty plea. As to that the appellant first appeared in Court on 1 October 2010 when he was charged. His plea was entered on 15 December 2010, two and a half months later. There was opportunity for him to plead guilty prior to the two and a half months remand period. A deduction for his guilty plea of 20% therefore more than adequately fits with the timing of that plea. This reduces the sentence giving the appellant some advantage on the arithmetic to nineteen months’ imprisonment.

[15] As to remorse the Judge gave a one month reduction based on the letter sent by the appellant. I would not give any reduction. It is difficult to see that the appellant has yet established genuine remorse given the circumstances of the offending and his past. He would have to do more than express remorse in the

circumstances to convince me that a reduction for remorse was appropriate; there would need to be real action which compellingly illustrates that he had changed what has been serious regular violent offending towards woman and a disregard of Court orders.

[16] The Judge imposed a sentence of two weeks less than two years or

23 months, two weeks’ imprisonment. My analysis results in a sentence of

19 months’ imprisonment.

[17] In those circumstances the appeal is allowed. The sentence of 23 months, two weeks’ imprisonment is quashed. I impose a sentence on the assault with intent to injure, therefore, 19 months’ imprisonment and a sentence of two months’ imprisonment concurrent of all of the other charges.

[18] At the end of my sentencing Mr Sainsbury has pointed out that the plea was actually entered on 24 November 2010 rather than 15 December 2010 which I had recorded. I have taken that figure from the information sheets but it may be that I was in error. That makes the plea some three weeks earlier. Although that might have had some influence on the 20% I still would not have been prepared to give the full 25%. As a way of reflecting that the proper course is for me to add a small percentage onto the 20% and reduce the nineteen months’ imprisonment to eighteen

_{months’ imprisonment to fairly reflect the matter raised by Mr Sainsbury.}

Ronald Young J

Solicitors:

N J Sainsbury, Barrister, PO Box 5089, Wellington, email: [e-mail]

I R Murray, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]