Rooney v Police [2014] NZHC 1033 (22 May 2014)

Last Updated: 18 June 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2014-419-000024 [2014] NZHC 1033

BETWEEN	KOTAHI MORGAN MIKAERA ROONEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 May 2014
Appearances:	G A Walsh for the Appellant T C Tran for the Respondent
Judgment:	22 May 2014

_{JUDGMENT OF GILBERT J}

This judgment is delivered by me on 22 May 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ROONEY v NEW ZEALAND POLICE [2014] NZHC 1033 [22 May 2014]

Introduction

[1] Mr Rooney appeals against a sentence of 13 months’ imprisonment having pleaded guilty to assaulting his 11 year old daughter with a weapon. The maximum penalty for this offence is five years’ imprisonment.

Facts

[2] On the morning of 3 July 2013, Mr Rooney’s daughter was getting ready for school when her mother discovered rotten fruit in her school bag and told her to clean it out. Mr Rooney overheard this. He picked up a plastic pipe, 70cm long and

15mm in diameter, and struck his daughter approximately five times on the back of her legs and once on her right arm. He told her not to say anything about what had happened when she left for school, crying. Mr Rooney’s daughter suffered minor bruises to her left leg and right arm, although these are not apparent in the photographs that were taken of these areas. The victim impact statement indicates there are no lasting effects.

[3] Mr Rooney has a number of previous convictions for offences involving violence, including assault with intent to injure, male assaults female, aggravated robbery, and wounding with intent to cause grievous bodily harm. However, these offences were committed between 1995 and October 2000 when Mr Rooney was aged between 16 and 21. He is now 35 years of age. There have been no relevant convictions in the last 14 years other than breach of a protection order in March 2012 for which Mr Rooney was sentenced to intensive supervision. The current offending occurred while Mr Rooney was subject to that sentence.

Decision under appeal

[4] Judge Connell noted Mr Rooney’s prior convictions for offences involving violence. He accepted that Mr Rooney appeared to have matured and that there was no recent history of such offending. The Judge also accepted that Mr Rooney did not want to hurt his daughter and had acted out of frustration. However, the Judge considered that nothing less than a sentence of imprisonment was required to serve

the purposes of denunciation and deterrence in cases like this where a person assaults a child in his or her care, using a weapon.

[5] The Judge adopted a starting point of 15 months’ imprisonment. He allowed a discount of four months for Mr Rooney’s early guilty plea. This resulted in an end sentence of 11 months’ imprisonment. However, the record of hearing shows that Mr Rooney was sentenced to 13 months’ imprisonment. This discrepancy has apparently not been corrected.

Appeal

[6] Mr Rooney appeals on the basis that the starting point adopted was too high with the result that the end sentence was manifestly excessive. Mr Walsh accepts, however, that a short term of imprisonment was the appropriate response in this case.

Discussion

[7] There is no guideline decision because of the wide range of circumstances in which this offence may be committed. As Mr Walsh acknowledges, the particular facts of each case will always be decisive. However, he referred to three decisions to support his submission that the starting point adopted in this case was too high.

[8] First, he referred to the Court of Appeal’s decision in R v Hensley.¹ In that case the Court of Appeal quashed a sentence of nine months’ imprisonment for assault with a weapon and substituted a sentence of imprisonment to expire immediately. This meant that the appellant served two months’ imprisonment for her offending which involved an attack on an adult male victim with a knife, resulting in minor scratches to the victim’s hands. The Court reviewed a number of comparable cases in which suspended sentences of imprisonment or community-based sentences had been imposed for more serious offending. However, as Mr Tran submitted, these cases are distinguishable because they did not involve an assault on a child in

_{the defendant’s care.}

¹ R v Hensley CA50/02, 18 April 2002.

[9] The next case Mr Walsh relies on is the decision of Miller J in Leatherby v NZ Police.² In that case a sentence of 12 months’ imprisonment had been imposed for striking the victim on the side of his head with a butcher’s knife leaving him with a 1.5 cm cut above his left eye. The Judge found that the starting point ought to have been nine months’ imprisonment, resulting in an end sentence of six months’ imprisonment. Again, this case provides only limited assistance because it does not

involve an assault on a child.

[10] The last case relied on by Mr Walsh is the decision of Frater J in Mann v NZ Police.³ In that case the Judge had to consider sentences imposed for offences arising out of three separate incidents where the appellant’s former partner was the victim. In the first of these the victim awoke to find the appellant rubbing a butcher’s knife up and down her neck. When asked what he was doing, he said he was going to kill her and the other adults in the house. The Judge accepted that the sentence of nine months’ imprisonment was “very much at the outer end of the sentencing range” but was not persuaded that it was clearly excessive, particularly

having regard to the accompanying threat to kill.

[11] In the second incident, the appellant grabbed the victim by her throat, pushed her against the couch and threatened to knock her out. He then punched her on the head a couple of times. The victim suffered bruising to her face, arms and legs. The Judge reduced the cumulative sentence of six months’ imprisonment imposed for this offending and substituted a sentence of three months’ imprisonment. This took into account various mitigating factors including the early guilty plea, the lack of previous convictions for violence, the offender’s limited intellectual ability and psychiatric state at the time.

[12] The third incident involved a breach of a protection order by coming to the house but there was no altercation or violence. The Judge reduced the sentence for this offending from three months’ imprisonment to one month and ordered that it be

_{served concurrently.}

² _{Leatherby v NZ Police HC PMN CRI-2008-454-45, 11 September 2008.}

³ Mann v NZ Police HC INV CRI-2005-425-14-15, 19 August 2005.

[13] Mr Tran submits that these cases are all distinguishable because none involved assault on a child. He referred to the Court of Appeal’s decision in Waiti v R in which the Court dismissed an appeal against a sentence of 18 months’ imprisonment for assaulting a 15 year old boy entrusted to the appellant’s care by the Department of Social Welfare.⁴ The assault in that case was much more serious than in the present case. Tompkins J, who gave the decision of the Court, described the assault as “a severe beating using a tea tree stick over a period of some 20 minutes”. The beating was accompanied by verbal abuse and took place in the presence of

other young people with the intention of degrading the victim. The doctor who examined the victim six days later reported extensive bruising to the victim’s upper legs and ankles, minor lacerations to the right wrist where the victim had been handcuffed and a fracture to his right hand. This fracture had to be set in plaster for six weeks. Having regard to the severity of the beating, the injuries inflicted, the use of a weapon, and the fact that the victim had been placed in the appellant’s care, the Court was not persuaded that the sentence of 18 months’ imprisonment was manifestly excessive notwithstanding the appellant’s lack of relevant previous convictions.

[14] After the hearing concluded, Mr Tran filed a further memorandum attaching a copy of Chisholm J’s decision in Leota v Police⁵ and the Court of Appeal’s decision in R v Bishop⁶. In Leota, Chisholm J dismissed an appeal against a sentence of nine months’ imprisonment for assaulting a 10 year old girl by striking her forcefully and repeatedly on her face and body with a metre long piece of wood over a period of

minutes causing severe facial swelling and bruising and a haemorrhage in one eye. The force applied was such that some pieces of wood broke off during the attack which occurred in the presence of three other children. The sentencing Judge adopted a starting point of “perhaps up to 18 months” but arrived at an end sentence of nine months to take into account the appellant’s guilty plea, clear remorse and the fact that the appellant was of otherwise impeccable character. The assault in the present case was nowhere as serious as the assault in Leota and would require a

_{much lower starting point.}

⁴ _{Waiti v R CA15/96, 28 March 1996.}

⁵ _{Leota v Police HC Christchurch CRI-2008-409-89, 26 June 2008.}

⁶ R v Bishop [2008] NZCA 97.

[15] In Bishop, the victim, a 15 year old boy, was assaulted by both of his parents during the course of a car journey. The appeal related to the sentence imposed on Mrs Bishop for her role in these assaults. In the first of these, Mrs Bishop turned from the front passenger seat of the car and slapped her son in the face at least three times causing his nose to bleed. Mr Bishop stopped the car. He then assaulted the victim, punching him in the cheek and throwing him over the draw bar of the trailer before kicking him on the side of his body, chest, lower back and upper thigh. Mrs Bishop brought tape from the car which was used to tape the victim’s arms and legs together. While attempting to place him back in the car, the victim kicked Mr Bishop in the face. Mr Bishop responded by pulling him from the car and kicking him again. The appellant stood alongside and watched. This was the second incident. The appellant was not charged with the third incident in which Mr Bishop kicked and punched the victim at least twice.

[16] The appellant was acquitted by a jury in relation to the first incident, having raised parental discipline as a defence. However, she was convicted in relation to the second incident. The Court of Appeal accepted that a sentence of nine months’ imprisonment was manifestly excessive for the appellant’s limited role in the second incident and substituted a sentence of four and a half months. In reaching this conclusion the Court took into account that the appellant’s role was essentially passive, other than handing the tape to Mr Bishop.

[17] Bishop provides only limited assistance on the appropriate sentencing level in this case because the facts were quite different.

[18] In R v Murphy,⁷ the Court of Appeal upheld a sentence of six months’ imprisonment followed by 12 months’ probation. In that case, the appellant had been convicted of wilfully ill-treating a child for which the maximum penalty is

10 years’ imprisonment. The victim in that case was an 11 year old girl and one of four foster children living with the appellant and her husband. The offending involved a number of incidents. In one of these, the victim was thrashed with a

_{rolling pin causing considerable bruising. In a separate incident, the victim’s arm}

⁷ R v Murphy CA18/83, 2 August 1983.

was twisted behind her back resulting in her upper arm being broken. Again, this offending was plainly much more serious than the offending in the present case.

[19] There are a number of cases in which offending comparable to the present has been dealt with by community based sentences. In J v Police, French J upheld a

$1000 fine in a case where the appellant had struck his daughter twice with a leather belt and left bruises that were still visible several days later.⁸ In Hendry v Police, Clifford J described a sentence of two months’ home detention as an appropriately “stern view” of an assault that involved slapping a two year old hard enough to leave a handprint on his face.⁹ In I v Police, Venning J upheld a sentence of 100 hours community work and nine months supervision for what was described as a moderately serious assault.¹⁰ In that case the appellant struck a four year old child in the face with enough force to knock her off a chair.

[20] In cases involving violence against children under 14 years of age, the Court is required by s 9A of the Sentencing Act 2002 to take account of various aggravating factors to the extent that they are applicable. These are the defencelessness of the victim, any serious long-term physical or psychological effect on the victim, the magnitude of the breach of any relationship of trust between the victim and the offender, any threats by the offender to prevent the victim reporting the offending and any deliberate concealment of the offending from the authorities. These factors are in addition to any other factors that might be relevant in the particular case.

[21] The main aggravating features of the present case are the vulnerability of the victim who was aged 11 and the fact that the victim was the appellant’s daughter and was entitled to be kept safe in her own home. The offending involved a serious breach of trust. Balanced against this, the assault was not one of the more serious of its type and caused no significant physical injury. It appears from the victim impact

_{statement that the offending has not caused lasting psychological damage either.}

⁸ _{J v Police HC Christchurch CRI-2008-409-187, 18 December 2008.}

⁹ _{Hendry v Police [2012] NZHC 3581.}

¹⁰ I v Police [2013] NZHC 2925.

[22] In my view, having regard to the authorities to which I have referred, the starting point adopted of 15 months’ imprisonment adopted in this case was manifestly excessive. It appears that the Judge considered that a starting point at this level was required because of the appellant’s previous convictions for violent offending. However, these convictions were for offending which now must be regarded as historical. The appellant has no convictions for violent offending in the past 14 years.

[23] Although the present offending involved the use of a plastic pipe, the injuries were no more serious than if the victim had been struck by the hand. Indeed, a number of the cases to which I have referred involved more serious injuries being inflicted without any form of weapon being used.

[24] With respect to the experienced Judge, I have come to the conclusion that, taking into account the early guilty plea, the sentence imposed in this case was manifestly excessive. The appellant has already served four months’ imprisonment. I consider that this is a sufficient penalty in all of the circumstances of this case.

Result

[25] The appeal is allowed.

[26] The sentence imposed in the District Court of 13 months’ imprisonment is

quashed and replaced with a sentence of imprisonment of four months.

[27] The conditions imposed by the sentencing Judge will continue to apply to the substituted sentence.

M A Gilbert J