Grace v Police [2016] NZHC 3021 (12 December 2016)

Last Updated: 21 December 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000026 [2016] NZHC 3021

BETWEEN	LOGAN DEAN GRACE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Appearances:	A Dawson for Appellant CER Power for Respondent
Judgment:	12 December 2016

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] Mr Grace appeals against a sentence of two years and three months’

imprisonment by His Honour Judge Crosbie in the Dunedin District Court on

19 October 2016. This sentence was for:

(a) Two charges of male assaults female; (b) Two charges of wilful damage; and (c) One charge of intimidation.

[2] The appellant advances three grounds for this appeal and contends that the sentence passed by Judge Crosbie as a result was manifestly excessive. The grounds for the appeal advanced are, first, that the starting point adopted by the Judge in the District Court was too high. Secondly, the uplift of four months for the Summary

_{Offences Act offences was excessive. And thirdly, the Judge in the District Court}

GRACE v NEW ZEALAND POLICE [2016] NZHC 3021 [12 December 2016]

gave insufficient credit for mitigating factors. Each ground of appeal is to be addressed shortly but, first, I set out the factual background for this matter.

Factual Background

[3] The victim in relation to these events is a 24 year old woman. She is known to the appellant who is aged 42. The victim had been in a relationship with the appellant for several weeks at the time of the offending which took place over a

14 day period between 19 December 2015 and 1 January 2016.

First Male assaults female

[4] Turning now to the first charge of male assaults female, on 19 December

2015, the victim and the appellant had been socialising together, it seems, at a party. Together they left, got into a van when the victim discovered she had left her bag inside the house. She told the appellant she was going to go back to get her bag. The appellant immediately back-handed the victim to the face four times, splitting her lip which was then bleeding.

[5] The appellant, it seems, yelled and swore at the victim, calling her a slut and accusing her of talking to other men. During this the appellant slammed his left hand into her throat and pushed hard on her neck. She was struggling hard to breathe but he continued, it seems, to yell and abuse her. Bruising was caused to the victim from her earlobes down past her jaw to her collarbone and her neck area, including her chest.

[6] A few days later the appellant continued to text the victim, saying how sorry he was and he would not do it again. As a result it seems they resumed contact.

Wilful damage

[7] Turning now to the wilful damage charge, several days later, on the night of

25 December 2015, the appellant and the victim had an argument. During this the appellant accused the victim of flirting with his friend and sleeping with others. The defendant threw the victim’s phone at his bedroom wall with such force it became

wedged in the wall. He then threw the phone against at the wall several more times, destroying the phone entirely.

Second male assaults female

[8] Turning now to the second charge of male assaults female, the next day, on

26 December 2015, the appellant again grabbed the victim by the throat and pushed her. She fell at that time onto bed where he continued to yell and abuse her while squeezing her neck so hard she found it hard to breathe. This ordeal continued for about 20 minutes. The victim feared that the appellant was going to kill her.

Intimidation

[9] Turning next to the intimidation charge, after that second assault, the appellant went to a door and picked up a machete that was on the ground nearby. It seems at the time he was enraged and he brandished the machete in a manner clearly intended to intimidate the victim, which it seems he did.

Second wilful damage

[10] Turning last to the second wilful damage charge, a few days after the earlier events, on 1 January 2016, the appellant and the victim were socialising with friends whereupon the appellant decided to accuse the victim of using a social media site “snapchat” to talk to other men.

[11] The appellant then asked to see the victim’s new phone which she had acquired. When she refused, he grabbed hold of the phone and began searching it. He then threw it forcefully onto the bedroom floor, damaging the phone beyond use.

Victim impact statement

[12] Turning now to the victim impact statement in this matter, it appears this confirms that the victim:

(a) fears for her safety; secondly,

(b) has difficulty in trusting people she does not know well; (c) had been undergoing psychological counselling;

(d) appears to lack self respect; and

(e) has indicated she is constantly thinking about what happened to her at the hands of the defendant.

[13] These effects of the appellant’s offending on his female victim are significant

and relevant to the starting point and decision Judge Crosbie adopted here.

District Court decision

[14] Turning now to the District Court decision itself, in sentencing the appellant, Judge Crosbie emphasised the seriousness of both of the male assaults female convictions here for events which had happened over a matter of a days. His Honour held:

So in terms of the violence that you extracted, just on a male assaults female basis, it is almost, to use words under the Sentencing Act 2002, the worst of its kind or approaching the worst of its kind. I have to say to you, Mr Grace, sitting here as I have day in/day out for 15 years now, and seeing thousands of these cases, that to have two male assaults like this within a couple of days of each other, involving an aspect of strangling, is not all that common and is very serious.

[15] Taking the seriousness of the offending into account, Judge Crosbie determined that these offences were to be sentenced on a cumulative basis. For each of the two charges of male assaults female he adopted a starting point of 18 months, making a total starting point of three years. An uplift of four months was imposed for the three other separate charges. A further uplift of six months was imposed for the appellant’s prior convictions and this brought the starting point to 44 months.

[16] The Judge then gave a credit of 30 per cent, being 14 months, for the appellant’s early guilty plea and remorse and a reduction of a further three months to take into account the principle of totality. The end sentence came to 27 months’

imprisonment, consisting of 12 months on the first assault, 12 months on the second assault, and three months for the three other convictions.

[17] A reparation of $400 was made and a final protection order was also imposed.

Jurisdiction

[18] Turning now to the jurisdiction for this appeal, Mr Grace, the appellant, appeals this matter as of right.¹ Pursuant to s 250 of that Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, this appeal court must dismiss the appeal.

Analysis

Was the starting point too high?

[19] Turning now to an analysis of this matter, the first question is was the starting point too high? On this the appellant refers to two authorities to support his ground of appeal that the starting point was manifestly excessive. First is Waitai v R. In this case, during a heated argument between the appellant and the victim who was five months’ pregnant at the time, the appellant placed the victim in a choker hold and squeezed her neck so that she could not breathe.² The hold was released but then reimposed. After a third chocker hold was instigated, the appellant’s attack continued until a third party intervened.

[20] In considering an appeal from the District Court sentencing decision in this matter Her Honour Katz J surveyed a number of authorities and concluded the usual starting point on this type of offending was 12 months’ imprisonment. She held that the District Court’s decision of an 18 months’ imprisonment starting point was

_{manifestly excessive.}

¹ _{Criminal Procedure Act 2011, s 244.}

² Waitai v R [2014] NZHC 2116.

[21] The second decision referred to was Taylor v Police. In this case the appellant pleaded guilty to three charges of male assaults female and two charges of wilful damage.³ The starting points of nine months’ imprisonment were imposed. The defendant in that case smashed the victim’s phone after becoming upset about information he found on it. The appellant later threw the victim onto a bed, got on top of her and forcefully squeezed her neck. The next day, the appellant came back, spat in the victim’s face in front of her young child. Asher J in this Court in his decision on the appeal held that a nine month starting point was at the higher end of

the Judge’s discretion.

[22] However, in his decision Asher J in that case noted the following:

I do not regard this offending as among the most serious of its category. There was no punching or kicking or acts of cruelty. By far the most serious of the three assaults was the squeezing of the victim’s neck. This must have been a painful and frightening experience for the victim. However, it does not appear to have put her in fear for her life or to indeed have stopped her breathing. On the basis of the victim impact report and the police summary it did not leave any bruises or marks. In the police summary it is referred to as squeezing, not strangling. The other assaults involved grabbing and throwing the victim against the wall and the spitting in her face.

[23] The case which prevailed in Taylor therefore, in my view, seems to be not as serious as the case before me. The Waitai case, the appellant says, is at least at the same level of seriousness as the present offending. I am not entirely in agreement with this, although I do note Waitai might have otherwise justified consideration of a lower starting point here. Unlike Taylor in particular, in the present case the appellant in his first assault had “slammed his left hand into his victim’s throat and pushed hard on her neck. She was struggling to breathe”. The victim also suffered, from this first assault, bruises from around her ear lobes down past her jaw to her collarbone. The second assault then in turn lasted for around 20 minutes. The victim genuinely feared for her life. I therefore do not find Taylor, or perhaps even Waitai, to be directly analogous to the current decision.

[24] While to a certain extent the starting point adopted by Judge Crosbie must be seen as being at the higher end of the spectrum, I find, although perhaps here by a

_{reasonably fine margin, that Judge Crosbie’s approach was justified on the facts of}

³ Taylor v Police HC Hamilton CRI-2007-419-091, 23 August 2007.

the case. I bear in mind the principle under the Sentencing Act that the Court must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which the penalty is prescribed.⁴ Judge Crosbie, having found that these set of charges to be the most serious of their kind that he has seen in the last 15 years of his service as a District Court Judge, in my view to an extent, was able to adopt the 18 months starting point on each charge which he did.

[25] I note further that even if Judge Crosbie did adopt a relatively high starting point, his Honour also gave a 30 per cent discount for remorse and guilty plea, which as I will note later I find to be generous, and a further three months reduction to take into account the principle of totality. Therefore, even if there may have been an error in adopting a excessively high starting point, which I do find there was not however, the generous discount and adjustment for totality compensates to some extent for the starting point adopted.

Was the uplift for the Summary Offences Act offences excessive?

[26] I turn now to the second question, was the uplift for the Summary Offences Act offences excessive? Before me the appellant submitted that four months uplift for the convictions of wilful damage and intimidation was excessive. However, I do not agree. Both wilful damage charges relate to the appellant damaging or destroying the victim’s cellphones on two separate but quite close occasions. The first wilful damage of the victim’s phone happened around the incident resulting in the appellant’s first conviction for male assaults female. What might seem somewhat like déjà vu to the victim, the second wilful damage incident, this time of her new replacement phone, happened within a week of the first. And, on the last charge of intimidation, which involved the appellant brandishing a machete in a manner clearly designed to intimidate the same victim, as I see it, this was a serious threatening incident adding to the severity of the uplift required here.

[27] As I have noted, the victim impact statement confirms the victim feared for her safety, has difficulty now trusting people, has been undergoing psychological

⁴ Sentencing Act 2002, s 8(d).

counselling and constantly, she says, thinks about what happened to her at the hands of the appellant.

[28] Overall I find, therefore, that the four months uplift here was well within

Judge Crosbie’s discretion.

Was there insufficient credit given for the appellant’s personal mitigating factors?

[29] Lastly I turn to the question as to whether there was insufficient credit given for the appellant’s personal mitigating factors. The appellant submits that a total credit of 35 per cent should have been given and would have been more appropriate here. This, it is said, would be made up of 20 per cent for the guilty plea, 10 percent for rehabilitative work done in custody and a further 5 per cent for a combination of remorse and willingness to attend restorative justice.

[30] As I see it, however, the 30 per cent discount actually awarded for the appellant’s guilty plea, remorse and rehabilitative efforts in this case was generous. The remorse demonstrated by the appellant here might be in reality related, to a significant extent, to concern he had for his own predicament. The 30 per cent discount was awarded, as I understand it, contrary to forceful submissions advanced to the District Court Judge by the prosecutor at first instance. That discount, as I see it, is more than enough to acknowledge the personal circumstances of the appellant.

[31] Lastly I turn to one matter raised before me on this appeal. This is a matter counsel for the respondent noted in his submissions. This was to the effect that in terms of the final sentence imposed in the District Court there does not appear to be any reference made to the fact that the appellant appears to have offended here while he was possibly still subject to both standard and release conditions imposed on

31 March 2015 for offences of violence. There he was sentenced to one year one month, and eight months’ imprisonment concurrently.

[32] Before me on this appeal, however, no final confirmation of release dates has been possible. If the respondent’s submissions are correct and accepted, however, this matter could possibly have led to a further uplift of up to around four months’

imprisonment for the appellant, but Mr Power before me noted that this does not appear to have been considered by any of the parties at first instance.

[33] There is clearly some lack of clarity on this particular aspect and I have no alternative but to leave it on one side, which I now do. I simply mention the matter at this point for completeness.

Result

[34] Turning now to my conclusion in this matter, having had the opportunity of considering the detailed and helpful submissions advanced before me by counsel, I reach the view that I am not satisfied it could be said here that Judge Crosbie erred during his sentencing, or that a different sentence should have been imposed. The sentence he did impose was within the range of available sentences at his discretion.

[35] For all these reasons this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin