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Res Ipsa

Brown v R [2014] NZCA 93, 26 March 2014

Court
Court of Appeal
Judgment
26 March 2014
Neutral
[2014] NZCA 93

Areas of law

Criminal Law - Sentencing - Injuring with Intent to Injure
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Judgment analysis

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Facts

On the evening of 1 March 2013, Mr. Brown was drinking with an associate. His former partner, the complainant, later joined them. The three went for a drive, during which Mr. Brown subjected the complainant to a sustained assault. He punched her in the face and head multiple times, placed his knee on her chest causing breathing difficulties, and pulled clumps of hair from her head. During the assault, comments were made by Mr. Brown and his associate which caused the complainant concern. She sent text messages to a friend, leading to police intervention. Police located and stopped the car, finding the complainant bleeding, bruised, and distressed. Mr. Brown was arrested. The complainant was treated at a hospital and discharged hours later.

Held

  1. An eight-month uplift for previous offending, added to a starting point of two years and eight months, was excessive and disproportionate where the prior offences were not of the same level of seriousness.
  2. The end sentence was manifestly excessive due to the combination of a starting point at the higher end of the range, an excessive uplift for personal aggravating factors, and the possibility that a small allowance could have been made for remorse and rehabilitation.
  3. The correct sentencing methodology in this case involved taking the starting point of two years and eight months, adding a reduced uplift of two months for recent relevant convictions, and then applying a 25 per cent discount for the guilty plea, remorse and rehabilitation, resulting in a final sentence of 26 months (two years and two months).

The appeal against sentence is allowed. The sentence of two years and eight months’ imprisonment is quashed and a sentence of two years and two months’ imprisonment is substituted.

Key passages5

Guideline judgments are intended to minimise the need to trawl through other cases to obtain guidance as to an appropriate starting point.

“Guideline judgments are intended to minimise the need to trawl through other cases to obtain guidance as to an appropriate starting point.”

Provocation may reduce the culpability of offending where there was 'serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence'.

“It will do so where there was “serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence”.”

An uplift for previous offending must maintain 'a reasonable relationship to the penalty justified by the gravity of the offence'.

“The Court held that “a reasonable relationship to the penalty justified by the gravity of the offence must be maintained”: at 591.”

Continued offending despite previous sentences indicates that individual deterrence is an important sentencing purpose.

“That Mr Brown was continuing to offend despite those previous sentences indicated that individual deterrence was an important sentencing purpose.”

Protection of the public is an important consideration in sentencing.

“Protection of the public (particularly the complainant) was also an important consideration.”

Cases mentioned in judgment

  • Beckham v R [2012] NZCA 290

    Applied
  • Cavanagh v Police [2012] NZHC 3539

    Distinguished
  • Julian v R [2012] NZCA 453

  • Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39

    Applied
  • R v Brown DC Auckland CRI-2013-044-2041, 27 September 2013

    Overturned
  • R v Nuku

  • R v Taueki [2005] 3 NZLR 372 (CA)

    Applied
  • R v Ward [1976] 1 NZLR 588 (CA)

    Applied
  • Sheppard v R [2013] NZCA 639

    Distinguished
  • The King v Casey [1931] NZLR 594 (CA)

    Applied
  • Tonihi v Police [2013] NZHC 737

    Distinguished

Legislation mentioned

  • Crimes Act 1961, s 189(2)