Dempsey v Police [2015] NZHC 2589 (21 October 2015)

Last Updated: 25 November 2015

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2015-442-20 [2015] NZHC 2589

BETWEEN	RONAYNE JOSEPH DEMPSEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015 (Heard at Wellington via AVL)
Counsel:	M J Vesty for Appellant S K O'Donoghue for Respondent
Judgment:	21 October 2015

JUDGMENT OF BROWN J (Appeal against sentence)

[1] Mr Dempsey pleaded guilty to one charge of common assault.¹ On 27 July

2015 he was sentenced by Judge Whitehead to nine months’ imprisonment in the District Court at Nelson.² Mr Dempsey now appeals against that sentence on the ground that it is manifestly excessive.

Facts of the offending

[2] At 6.00am on Sunday 25 January 2015 Mr Dempsey and an associate were on Manchester Street in Christchurch. They approached the victim, who was unknown to them, from behind and Mr Dempsey pushed him and punched him in the head. There was then a struggle, the result of which was Mr Dempsey and the victim

_{ending up in a bush. The associate then punched the victim in the head, causing the}

¹ _{Crimes Act 1961, s 196. Maximum penalty: one year imprisonment.}

² _{Police v Dempsey [2015] NZDC 14399.}

DEMPSEY v NZ POLICE [2015] NZHC 2589 [21 October 2015]

victim to drop to the ground in order to protect himself. The victim suffered a sore head. The assault can be characterised as random, unprovoked and unsophisticated.

District Court sentencing

[3] The relevant paragraphs of his Honour’s sentencing notes are as follows:

[2] You have some 10 pages of prior convictions, and many of those are violence and breaching protection orders, male assaults female, and other offending across the spectrum including breach of Court release conditions, breaches of community work, possessing weapons in a public place, also assaulting police, theft, and it just goes on.

...

[5] The probation report I have read describes this particular assault as a random act of violence directed at a complete stranger. You have an ongoing propensity for violence, impulsivity and poor decision-making skills, and you have little sign of any genuine remorse. Rather eerily the probation officer said that your risk of re-offending is assessed as high because of your recidivist pattern of offending dominated by serious violence, and your risk of causing harm to others is considered high.

[6] The recommendation of the probation officer is prison. Clearly you and your counsel, Mr Vesty, accept that; the issue is how long. You seem to have settled in to the remand wing of your current prison. That is not a factor that I can take into account today. I take into account a sentence that will be deterrent for you, even though you are not going anywhere for a while, accountability and responsibility and in the public interest. I must impose the least restrictive sentence, and I am of the view that the starting point, given your history of assaultative behaviour, is 12 months. You are entitled to a discount for an early guilty plea of R v Hessell [2010] NZSC

135[2010] NZSC 135; , [2011] 1 NZLR 607.

[7] You are convicted and sentenced to nine months’ imprisonment. Standard and special conditions as set out in pre-sentence report to apply for six months after sentence expiry date.

Grounds of appeal

[4] Mr Dempsey appeals on the ground that the Judge adopted a starting point of

12 months’ imprisonment (the maximum sentence available) which was excessive and that as a result the end sentence of nine months’ imprisonment (following a reduction for the guilty plea) was excessive. Mr Vesty for Mr Dempsey submits that a starting point of six months’ imprisonment would have been more appropriate.

Approach on appeal

[5] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

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

and

(b) a different sentence should be imposed.

[6] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered, but not in a way that amounts to a minor adjustment, or ‘tinkering’. On appeal the Court must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached.³

[7] In any other case, the Court must dismiss the appeal.

Analysis

[8] The sentencing notes do not disclose the sentencing methodology which led the Judge to conclude that a starting point of 12 months’ imprisonment was appropriate in all of the circumstances. From [6] it appears his Honour placed little weight on the features of the assault but considered Mr Dempsey’s criminal history was a significant consideration. Indeed in her submissions in support of the sentence Ms O’Donoghue contended that the Judge did not apply a discrete uplift to reflect previous convictions for violence but rather specifically built these into the starting point. She submitted that that is a practice which is common in cases of violence

_{such as the present case.}

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[9] Mr Vesty argued that the gravity of the assault was only moderate and should have attracted a starting point to reflect that. He pointed to the case of Borrell v Police in which Mr Borrell “king hit” a victim in the head from behind in the context of a bar fight.⁴ The victim was rendered unconscious, had no memory of the assault and suffered “severe” bruising on the back of his head and a cut on his face.

[10] On appeal in that case, Moore J reviewed a number of cases involving “king hits” and multiple blows to the head. He concluded that while the offending there was serious, it was not the “most serious” of its kind. He adopted a starting point of

10 months’ imprisonment to align with the sentencing principles in s 8(c) and (d) of the Sentencing Act 2002 that the penalty imposed must be proportionate to the seriousness of the offending.

[11] An example of a case which is in the category of the most serious of its kind is Dooley v Police, in which the defendant on two separate occasions approached a person of Asian descent without provocation, racially abused those people and punched them in the face (no medical treatment required on either occasion).⁵ On appeal, Chisholm J considered whether the maximum starting point of 12 months’ imprisonment was appropriate. He said:

[16] The assaults in this case were completely reprehensible. But, rightly or wrongly, I have reached the view that they could not justify the maximum starting sentence. This reflects, amongst other things, the lower sentences that are generally imposed for common assault. Having reached the view that the starting point was too high, two further questions arise: first, what should the starting point have been; and, second, would any adjustment be simply tinkering with the sentence imposed in the District Court, which would be contrary to appellate principles.

[17] In the end I have reached the view that the starting point should have been reasonably close to the maximum. I would have thought 10 months in each case would have been appropriate. I allow a discount of 25% for the guilty pleas. This means that if the starting point was 10 months the end sentence for each assault would be seven and a half months. ...

⁴ _{Borrell v Police [2014] NZHC 2422.}

⁵ Dooley v Police HC Christchurch CRI-2008-409-1, 21 February 2008.

[12] The aggravating features of that offending were: the attacks were unprovoked; racial taunting was involved; the defendant was accompanied by people such that intimidation of the victims was an aspect; the proximity in time between the two offences (one month); the defendant was on bail; and he had a number of previous convictions for similar offending.

[13] While I recognise that a comparison with previous similar cases is not particularly helpful given the breadth of circumstances in which such charges may arise, both Borrell and Dooley provide a useful background against which the seriousness of common assault offending may be assessed.

[14] In the present case it is an aggravating feature that the victim was attacked from behind and without warning, and further that he was punched in the head. However the attack was short-lived and the victim suffered only minor harm. The offending is therefore appropriately classified as towards the lower end of moderate, justifying a starting point of six months’ imprisonment.

[15] An uplift is certainly warranted given Mr Dempsey’s extensive history of previous convictions for violence. Given the need for proportionality between the starting point and any resulting uplift,⁶ I accept Mr Vesty’s submission that an appropriate uplift to the starting point to reflect previous convictions is two months rather than the three months contended for by Ms Donoghue. That results in a sentence of eight months’ imprisonment before consideration is given to mitigating factors.

[16] While there is no question that Mr Dempsey should be entitled to the full credit for his guilty plea, there are no other mitigating factors that apply to Mr Dempsey.

[17] The end sentence is therefore one of six months’ imprisonment, a difference of three months from that imposed in the District Court. That leads to the conclusion that the sentence imposed in the District Court was manifestly excessive and

_{consequently should be altered on appeal.}

⁶ Tiplady-Koroheke v R [2012] NZCA 477 at [24].

Decision

_{[18] I allow the appeal and substitute a sentence of six months’ imprisonment.}

_{Brown J}

Solicitors:

M J Vesty, Nelson

O’Donoghue Webber, Crown Solicitors, Nelson