Nix v Police [2014] NZHC 160 (14 February 2014)

Last Updated: 3 March 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000115 [2014] NZHC 160

JASON MURRAY NIX

v

NEW ZEALAND POLICE

Hearing: 13 February 2014

Appearances: B R Green for Mr Nix

K South for the Respondent

Judgment: 14 February 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] This is an appeal by the appellant, Mr Nix, against the sentence imposed by Judge Strettell in the District Court of 120 hours community service for one count of common assault.

[2] The essence of Mr Nix’s appeal is that the Judge failed to have regard to the time he spent in custody and on electronically monitored bail (EM bail) and, by implication, to properly discount the sentence to reflect those matters. Accordingly the sentence ultimately imposed was manifestly excessive.

Background

[3] Mr Nix had originally been charged with two counts of male assaults female under s 194(b) of the Crimes Act 1961, involving his partner. The first charge arose from an assault on 29 May 2013, and the second from an allegation of assault on

_{27 June 2013.}

NIX v NEW ZEALAND POLICE [2014] NZHC 160 [14 February 2014]

[4] Initially the appellant elected trial on both charges. However, at the appearance on 25 October 2013 before Judge Strettell, the police were granted leave to amend the first charge from male assaults female to common assault under s 196

Crimes Act 1961. The appellant entered a plea of guilty to that amended charge.

[5] The second charge was remanded for a further pre-trial call-over on

3 December 2013. An application that a conviction be entered on the appellant’s plea on the first charge but sentencing be adjourned until the disposal of the second charge, was declined. A pre-sentence report was not requested and a Judge imposed a sentence of 120 hours community work.

[6] As at the date the appellant was sentenced, he had been held in custody from

28 June until to 20 August 2013 (a total of 54 days); and had been held on EM bail from 20 August 2013 for a period of 65 days.

[7] On the second charge a notice of alibi was served on the police and the Crown on 25 October 2013. Mr Nix’s counsel indicated in his submissions that there was a prospect that the second charge would not proceed to trial given the inquiries made on the electronic evidence that had been part of the notice of alibi, but as at the date the appeal was heard, the charge was still on foot.

The District Court decision

[8] The sentencing decision of Judge Strettell is brief. He notes the previous history of similar offending in respect of assaults and breaches of protection orders and observed that there is “a pattern of conduct which suggests that Mr Nix finds it difficult to deal with the day to day intricacies of life and partners and often resorts to violence”. It is obvious he identifies this as an aggravating feature relating to the offender.

[9] In relation to matters which might reduce the sentence he refers to Mr Nix’s guilty plea, but does not identify how that is reflected in the sentence ultimately imposed. On the question of discounting the sentence for time spent in custody and on EM bail, he effectively defers consideration of what reduction that should result

in to be considered at the time he is sentenced on the other charge he was facing

(although the Judge refers to “charges” in the plural).

Submissions

[10] The essence of Mr Green’s submissions for Mr Nix is simply that the Judge refused to give consideration to the period of incarceration or EM bail in setting the sentence and this was an error which led to the sentence being “manifestly excessive”.

[11] He explained that if the seven weeks and five days spent in custody and the nine weeks two days spent on EM bail were taken into account, then the appellant had effectively been given the maximum sentence available, taking into account a

25 percent discount for pleading guilty at an early stage.

[12] The reasoning behind this submission was that the charge carries a maximum penalty of 12 months imprisonment. That would be discounted by 25 percent to a nine month sentence for pleading guilty early. With parole, Mr Nix would likely only serve four and a half months and so the total of 119 days spent in either custody or on EM bail equated to about four months imprisonment which, with the community service imposed on top of that, nearly reached the four and a half months he was likely to have served in a worst case scenario.

[13] For the respondent, Ms South began by directing the Court’s attention to s 121 of the Summary Proceedings Act, and in particular, that the Court must be satisfied that the sentence imposed was either “clearly excessive or inadequate or inappropriate”. If the Court is so convinced, it may substitute any sentence it considers appropriate, whether more or less severe.

[14] Ms South submitted that an end sentence of 120 hours community work was in no way “clearly excessive” and might well be seen as a lenient sentence given the seriousness of the offence and the appellant’s history of previous offending.

[15] In saying that she observed that the District Court Judge is entitled to take into account:

(a) the maximum penalty of one year imprisonment,

(b) the victim was a female and the offending took place in the context of a domestic relationship,

(c) the injuries were inflicted to the victim’s face causing bleeding and for

which she attended hospital,

(d) the fact that the appellant had several previous convictions for breaches of protection orders and male against female assaults.

[16] Importantly she noted that there is no legislative requirement for the Court to take into account the time spent on pre-sentence detention when imposing sentence. Nothing in s 9 of the Sentencing Act expressly requires time spent remanded in custody to be considered as a mitigating factor affecting sentence, although she did acknowledge that that is commonly the practice of the District Court when no other charges are before the Court. She did acknowledge that ss 9(2) and 9(3A) of the Sentencing Act provide that time spent on bail with an EM condition is a mandatory consideration for the Court. However, she noted that looking at the matters to be considered under s 9(3A), while Mr Nix’s conditions were onerous, he was frequently in breach of his EM bail conditions with five recorded breaches.

[17] She concluded therefore that while it was open for the Judge to consider applying credit to (or a reduction of) the sentence on account of the pre-sentence detention and time on EM bail, it was not mandatory, particularly given the existence of a later charge and the poor compliance with conditions of EM bail. There was, therefore, no error. Furthermore, even if the remand periods had been taken into account, and were reflected by way of discount, the end sentence of 120 hours could still not be said to be clearly excessive in the circumstances.

Analysis

[18] To succeed in this appeal Mr Nix must demonstrate both that the Judge erred by, for example, failing to take account of a relevant matter, and also that the result was manifestly excessive.

[19] The Judge has not articulated a starting point for his sentencing, so to some extent on appeal it is necessary to “reverse engineer” the Judge’s reasoning, taking into account that the maximum sentence for this charge is 12 months imprisonment.

[20] I accept that, given the factors relating to the offending, including that it was in the context of a domestic relationship and caused facial injury, it would not have been unreasonable to start with a sentence of imprisonment of say three to four months, and to impose a significant uplift for the appellant’s previous offending history including a number of similar assault charges (which the Judge clearly did take into account) taking it to six months.

[21] I also accept that a discount for a guilty plea was appropriate. The question then is what discount should apply (if any) for the time spent in custody and on EM bail.

[22] I agree that minimal discount should be included for time spent on EM bail, particularly given the repeated breaches of the conditions of bail. While time spent in custody is a matter that could be considered under s 9(4), I consider the Court was at liberty to ignore this, as it was not a mandatory consideration, and defer it to be considered if he should come up for sentencing on the second charge.

[23] However, even if it should have been taken into account it would not in my view have reduced the sentence to less than the sentence imposed.

[24] The sentence therefore is not manifestly excessive. Indeed it was lenient in the circumstances.

[25] For these reasons the appeal is dismissed.

Solicitors:

Cameron and Co., Christchurch

Raymond Donnelly and Co., Christchurch