Swinton v Police [2014] NZHC 298 (26 February 2014)

Last Updated: 5 June 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2014-463-000004 [2014] NZHC 298

HENARE RAUKOKORE SWINTON

v

_{NEW ZEALAND POLICE}

Hearing:	26 February 2014
Appearances:	W Te Are for the Appellant N Tahana for the Crown
Judgment:	26 February 2014

_{[ORAL] JUDGMENT OF WYLIE J}

SWINTON v POLICE [2014] NZHC 298 [26 February 2014]

Introduction

[1] The appellant, Mr Swinton, appeals a sentence imposed on him by Judge J J Weir in the District Court at Rotorua on 16 January 2014.

[2] Judge Weir imposed an end sentence of six months’ imprisonment on a charge of assault under the Summary Offences Act 1981, and concurrent sentences of two months’ imprisonment on two additional charges of wilful damage, also under the Summary Proceedings Act.

Background Facts

[3] Mr Swinton and the victim, a Ms Slater, had been in a long-term relationship for some eight years. They have one child together. Some two weeks prior to the events which are the subject of the charges, the relationship came to an end.

[4] On 18 November 2013, Ms Slater was sitting in the lounge at her property.

Her and Mr Swinton’s child was present. So was a friend, a Ms Harvey.

[5] Mr Swinton arrived at the address. He was agitated. Ms Slater challenged him, and Mr Swinton responded with a barrage of verbal abuse and obscene language. He spat at Ms Slater and his saliva struck her directly in the face. He then picked up his two year-old son and continued to verbally abuse Ms Slater. The child became scared.

[6] Mr Swinton spat at Ms Slater on two further occasions. On both occasions, he hit her in the face. She tried to reach out for the child. Mr Swinton grabbed her right arm and twisted it behind her back while still holding onto the child. He tried to stamp on Ms Slater’s toes. He was wearing heavy work-style boots and Ms Slater was bare footed. He did stamp on her toes approximately four times.

[7] Mr Swinton then turned his attention to Ms Harvey. He verbally abused her and used profane language.

[8] Eventually, Mr Swinton handed over the child and left the room. While he was in Ms Slater’s garage, he picked up a large and heavy brake disc and threw it at the wall, smashing a hole in the wall lining.

[9] Mr Swinton then left the address in his car. When he went past Ms Harvey’s vehicle, he stopped. He got out of his vehicle and forcefully kicked Ms Harvey’s vehicle two or three times with his boots. This caused two large dents to the passenger side door panels. Mr Swinton then left the area.

[10] Ms Slater received no injuries as a result of the assault.

[11] When Mr Swinton was spoken to by the police, he admitted the facts as outlined above. He stated that he had offended because he was angry at his ex-partner.

[12] Mr Swinton entered a guilty plea at the first available date.

Judge Weir’s Decision

[13] Judge Weir referred to the relevant facts which I have set out above. He recorded that two reports had been prepared to Mr Swinton’s offending and that there was no suitable address for home detention or anything of that nature. He noted that the probation officer who interviewed Mr Swinton had recommended a short term of imprisonment.

[14] Judge Weir noted that there were various upsides for Mr Swinton – in particular, that he was in full-time employment, and that he was in the third year of an apprenticeship. However, he considered that there were also downsides; in particular, that Mr Swinton was a patched member of the Mongrel Mob, and that, in all likelihood, he would remain affiliated to the mob for the rest of his life. The Judge considered that Mr Swinton’s actions were typical of a Mongrel Mob member. He also noted that Mr Swinton had previous convictions for assault, and for wilful damage.

[15] The Judge referred to a letter in which Mr Swinton expressed remorse.

[16] Judge Weir treated the lead charge as being the assault charge. He stated that he was applying the “totality factor”, taking into account the two charges of wilful damage, and also Mr Swinton’s previous history. He adopted a starting point of six months’ imprisonment, acknowledging that that was the maximum term for assault under the Summary Offences Act, but stressing that it took into account the wilful damage charges. He uplifted that term by a further two months to take account of Mr Swinton’s previous history. He then reduced it back to six months, to acknowledge his guilty plea. The end sentence imposed in relation to the lead charge of assault was one of six months’ imprisonment. On each of the wilful damage charges, a term of imprisonment of two months was imposed, to be served concurrently. Mr Swinton was made subject to standard release conditions for a period of six months after his sentence expiry date. In addition, special conditions contained in the probation officer’s report were imposed.

Submissions

[17] Mr Te Are, appearing for Mr Swinton, submitted that the starting point adopted by Judge Weir was too high. He argued that the offending here in issue was not the most serious of its kind and that the victim suffered no injury. He argued that Judge Weir, in adopting a starting point of six months, imposed a sentence which was manifestly excessive and wrong in principle.

[18] Uniquely in my experience, Ms Tahana, for the Crown, supported the appeal. She accepted that the six-month starting point was excessive, particularly if the assault was viewed in isolation. She referred me to various authorities in that regard. She acknowledged there was only a moderate level of violence, and that a six month term of imprisonment in relation to Mr Swinton’s offending was manifestly excessive. She accepted that a sentence “short of six months” would be appropriate.

Analysis

[19] This is an appeal pursuant to s 250 of the Criminal Procedure Act 2011. It provides as follows:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[20] Section 250 confirms the approach taken by the courts under the former Summary Proceedings Act 1957. A wide range of errors or irregularities may justify intervention by an appellate Court. Accepted grounds include:

(a) The sentence was manifestly excessive or lenient; (b) The sentence was inappropriate in a particular case; (c) The sentence involved an error of law or principle;

(d) Relevant facts before the sentencing court were incorrect or incorrectly assessed;

(e) There was a marked disparity with the sentence given to a co- offender;

(f) Facts existed at the time of the sentence that were not before the sentencing court;

(g) The court had no jurisdiction to sentence the offender.

[21] A court should not, however, intervene where the sentence is within a range that can properly be justified by accepting sentencing principles.

[22] There is no tariff case for common assault under the Summary Proceedings Act, and I accept that the courts must be cautious when applying comparable cases, because of the wide range of circumstances that can give rise to the charge. I also

accept that care is necessary to distinguish between charges of assault under the

Summary Offences Act, and charges of assault under the Crimes Act 1961.

[23] Ms Tahana referred me to a number of cases where terms of imprisonment ranging from two–three months have been imposed for what she referred to as “medium gravity assaults”. I note that in Kaitaina - Marii v Police,¹ Pankhurst J upheld a two-month starting point for a swing and miss assault on a security guard. In Sika v R,² the Court of Appeal found that a six-month starting point for an offender who approached and punched a random victim outside a nightclub was too high. The Court considered that the assault was serious and that it was completely unprovoked. However, it acknowledged that it was a single-punch case, and that there was no lasting injury. The appeal was allowed, and a starting point of three months was substituted. In Burgess v Police,³ Chisholm J imposed an end sentence of two and a half months’ imprisonment for an offender who pushed his partner, causing her to fall to the floor, while subject to a suspended sentence for an earlier assault on the same partner.

[24] While there is authority to the effect that the principle of reserving the maximum sentence for the worst cases cannot always apply when only short periods of imprisonment can be applied,⁴ I am satisfied that, in the present case, the six- month starting point in relation to the charge of assault was excessive. The maximum sentence that can be imposed in relation to a charge of assault under the Summary Proceedings Act is one of six months. However, the cases which I have

noted above suggest that the level of sentencing customarily observed with respect to the offence is below that imposed in the present case. The assault in itself was relatively minor. There were some aggravating features, namely the domestic context in which the violence was offered, the derogatory nature of some of the offending, in particular the spitting, and the presence of the child when the offending took place. Taking these various factors into account, in my view, the appropriate

_{sentence in relation to the charge of assault is one of three months’ imprisonment.}

¹ _{Kaitaina - Marii v Police [2012] NZHC 3497.}

² _{Sika v R [2011] NZCA 376.}

³ _{Burgess v Police, HC Dunedin CRI-2011-412-35,, 12 October 2011.}

⁴ Ratima v Police (1993) 9 CRNZ 416 (HC) at 418–419; Robinson v Police HC Hamilton

AP72/95, 4 September 1995.

[25] As Mr Te Are acknowledged, it is appropriate to apply an uplift to recognise the two charges of wilful damage. I apply an uplift of two months in relation to those charges.

[26] I also apply an uplift of one month to recognise Mr Swinton’s appalling criminal history. Of particular relevance is that he has prior convictions both for domestic assault and wilful damage. One of the convictions is for male assaults female. That conviction was in 2011, and it involved the same victim.

[27] Accordingly, the total sentence that I consider should be imposed is one of six months’ imprisonment. As I have noted above, Mr Swinton entered a prompt guilty plea, and he is entitled to the full credit applicable in the circumstances – namely 25 percent of the end sentence which would otherwise be imposed.

[28] Accordingly, the appeal is allowed and the sentence imposed by Judge Weir is set aside. I substitute a total end sentence of four months and two weeks’ imprisonment. This is made up as follows:

(a) In relation to the charge of assault, a term of imprisonment of four months and two weeks;

(b) In relation to each of the charges of wilful damage, a term of imprisonment of two months, to be served concurrently.

I also direct that the standard release conditions are to apply on termination of Mr Swinton’s end sentence. It is also appropriate to direct that the special conditions recommended by the probation officer be imposed, namely that Mr Swinton:

(c) Attend a psychological assessment with a departmental psychologist, as directed by a probation officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of the probation officer;

(d) That Mr Swinton undertake and complete the Tikanga Māori Programme and abide by the rules of the programme to the satisfaction of a probation officer.

(e) That Mr Swinton is not to associate with, or contact, the victim, Amanda Slater, without the prior written approval of a probation officer.

These conditions are to apply for a period of six months after the sentence expiry date.

Wylie J