Stone v Police [2012] NZHC 3127 (22 November 2012)

Last Updated: 28 November 2012

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-27 [2012] NZHC 3127

PETER JAMES STONE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 22 November 2012

Counsel: P J Jensen for Appellant

J E Rielly for Respondent

Judgment: 22 November 2012

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1] Mr Stone pleaded guilty to assaulting the complainant with a machete and possessing the machete in a public place.

[2] The Judge had previously heard a defended criminal case which involved the

facts of this case. The appellant’s counsel invited the Judge fine the appellant as to

$750 on each charge.

[3] Mr Stone says the sentence is manifestly excessive and that the Judge effectively doubled up on his culpability and failed to take into account the appellant’s medical history. Mr Stone has appealed only against the $750 fine

_{relating to possessing the machete in a public place.}

PETER JAMES STONE V NEW ZEALAND POLICE HC NAP CRI 2012-441-27 [22 November 2012]

[4] The incident involved a clash between a petrol attendant and Mr Stone. As a result of the events both Mr Stone and the petrol attendant were charged with criminal offending. The sentencing Judge had heard a defended criminal case relating to the allegations with respect to the petrol attendant. That placed him in a well informed position as far as the appellant’s culpability was concerned.

[5] I, therefore, take a summary of facts from the Judge’s sentencing notes as

follows:[1]

I heard the other half of this incident. It was an occasion where you went into a petrol station. There was a bit of quibbling about how much petrol you wanted. I accept, and did even this morning when I first heard it in relation to Mr Ryan’s case, that you had enough cash in your wallet. You were not sure whether you had $28 or $29 worth and there was something of a disagreement or an argument between you. I would put the fault squarely in both camps to be honest. I think this was an unnecessary contretemp that could have been saved had there been a bit more courtesy exercised on both sides of it.

He got impatient with you, told you to fill the car yourself, went away towards the shop on the end of the forecourt and you touched him. Now it was very clear from the closed-circuit television that I have been that you did do that. You were both heading towards the same door. You were slightly behind and you did reach up with your arm. I am unsure now as to whether that was a push, a shove or just touching to get him out of the way. He turned around and gave you a right hook to the eye and that has caused damage. I accept that and you are still suffering from the consequences of that today. Some account will be made by way of an allowance to you for that. It just should not have happened and I accepted that in terms of what I said to Mr Ryan.

Your behaviour then is as bad as his because you then headed off to your car, you picked up a machete and you came back with that. You struck him in the stomach with it – a very slight prick to the stomach and I understand that. You cut his arm. The stupidity of that must have surely come home to you after these events because the risk of something worse happened in your state of anger would be something unfortunately you only thought about afterwards and not before. How dumb it was for you to pick up a machete in those circumstances.

[6] The Judge understandably then observed that it would be common to imprison someone who had used a machete to assault another causing cuts. The Judge, however, took into account that there was provocation in that the appellant had himself been assaulted. The Judge did not consider that the appellant could do

_{community work because of his age. In those circumstances, the fine was imposed.}

[7] The appellant submissions are effectively that there is no reason why he should have been fined on both charges given they arose from the same incident. Secondly, that the appellant’s actions were contributed to by the concussion he had suffered after being punched.

[8] The sentence was well within the range available to the Judge. Indeed, it was a humane sentence. As the Judge noted, the use of a weapon in those circumstances would ordinarily result in a sentence of imprisonment. There was, however, significant provocation which properly reduced the sentence. There was no neurological evidence from the appellant to support the claim that his mental capacity relating to choice was somehow reduced as a result of a punch. However, a sentence of home detention or community detention could easily have been imposed in the circumstances.

[9] There was an element of “doubling up” in the appellant being charged with both charges. The assault with the machete would have adequately reflected the criminality involved. But a fine of $1,500 was for the overall offending a modest penalty. Certainly it is not an option open to the appellant to simply appeal one of the sentences and not the other and then say that that sentence is excessive. This would give him a technical advantage that the Courts could not possibly sanction. In my view the sentence was neither wrong nor manifestly excessive.

_{[10] The appeal against sentence is dismissed.}

_{Ronald Young J}

Solicitors:

P J Jensen, Barrister, Napier

J E Rielly, Elvidge & Partners, Napier, email: [e-mail]

---

[1] At [2] to [4].