Bridger v Police

[2012] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000049 [2012] NZHC 2429

BETWEEN  TYSON ZANE BRIDGER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 September 2012

Appearances: S McKenna for Appellant

J Tarrant for Respondent

Judgment:      19 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

Copy to:            S McKenna, Hamilton

BRIDGER V NEW ZEALAND POLICE HC HAM CRI-2012-419-000049 [19 September 2012]

[1]      On 23 July 2012 the appellant Mr Bridger was sentenced by Judge Tompkins to a total sentence of 28 months’ imprisonment in relation to charges of assault with intent to injure, common assault and breach of Court release conditions.  He appeals against that sentence on the grounds the sentence was manifestly excessive.

[2]      A preliminary point arises.   Before pleading guilty the appellant sought a sentence indication.  The Judge’s notes record a sentence indication of 18 months to two years plus a cumulative term for the breach of parole.

[3]      In the sentence the Judge subsequently imposed, the Judge took a start of two years four months and then imposed an end sentence of two years’ imprisonment for the assault charges and a cumulative term of four months for the breach of parole. Ms Tarrant properly raised with the Court whether in the circumstances the Judge had gone outside the sentence indication he had previously given.   I indicated to counsel that I took the sentence indication to refer to the end sentence, rather than the starting point.  Mr McKenna confirmed that was his understanding as well.

[4]      Sometimes  sentence  indications  are  expressed  as  an  indication  of  the appropriate starting point but unless they are expressly referred to in that way, at the end of the day the important point from an accused’s position is the end sentence. That is what I took the Judge’s notes to refer to in this case.  On that basis nothing arises out of the point Ms Tarrant properly drew the Court’s attention to.

[5]      The appeal against sentence is advanced on the following grounds.:

first, having regard to the Court of Appeal decision in R v Harris[1]  and the three bands referred to there, the starting point for the assault with intent to injure in this case of two years four months, even taking account of the

[1] R v Harris [2008] NZCA 528.

appellant’s poor past history, was excessive;

that the Judge should have given a more substantial credit for the guilty plea.

Counsel estimate the credit given was less than 15 per cent;  and

the four months imposed for the breach of release conditions was, in the circumstances itself excessive, and particularly when applied cumulatively to

the sentence for the assaults.

[6]      Ms Tarrant submitted that whilst perhaps stern, the sentence for the assault with intent to injure and the other assault, was not manifestly excessive. Again while the four months for the breach of release conditions might be seen as stern, it was not manifestly excessive given the past history of the offender.

[7]      The assaults in this case are of concern.   The first complainant was at her home address just after midnight when the appellant asked if he could come to see her.  She had only met him about a week before.  She declined his offer.  About half past midnight he appeared at her property.  She asked him to leave.  She sat down at the doorstep of her house and spoke to him, trying to get him to leave.   Without warning the appellant kicked her in the face, connecting with her cheek and nose, causing her nose to bleed and bruising to her cheek.  He then ran off.  The victim sought medical attention but there were no broken bones.

[8]      Some  three  months  later,  a  quite  separate  victim  was  assaulted  by  the appellant.  This victim was in a sleep-out attached to a main house.   She went to leave the sleep-out and return inside.  She noticed someone standing in the shadows. It was the appellant.  He grabbed her by her shirt collar with his left hand, raised his right hand above his shoulder making a fist.  He yelled to the victim “Where’s my f.....g” before he noticed there were other people about.  He let her go and left the address. The victim’s brother was involved with the appellant’s ex partner.

[9]      In relation to the failure to comply with release conditions, the appellant was inducted into the requirements of his parole conditions on 24 April.   He was instructed to report on 8 May.   On 8 May he left a voice mail message for the probation officer to advise that he was unable to report as he was in Tauranga.  On the same day he reported to the Tauranga Community Probation Service and advised he was unable to get back to Hamilton to report.  Although he attended Tauranga there was non-compliance with the standard conditions of his parole order which were to report to Hamilton.

[10]     The appeal is advanced in reliance on the Court of Appeal decision in R v

Harris.   In that case the Court suggested that in relation to injuring with intent to injure, the following three bands might be applicable:

Band one: little injury and few aggravating features a sentence of less than

imprisonment could be appropriate;

Band two: injuries are moderate, sentences of up to two years’ imprisonment;

Band three: for serious injury, sentences from 18 months up to the maximum could be justified.

[11]     Mr McKenna made the point that in R v Harris itself where there was quite a sustained assault on the victim the Court adopted a starting point of two and a half years’ imprisonment.   The victim in that case was punched and kicked multiple times to her head and she lost consciousness on more than one occasion.

[12]     I also note that the case of Collier v R[2]  has some similarities.  There was a charge of assault with intent to injure, the victim sustained swelling and bruising to an eye, which required medical attention, as the victim in this case, and another victim received a cut lip.   The Court of Appeal upheld the starting point of 15 months’ imprisonment.

[2] Collier v R [2012] NZCA 208.

[13]     On my review of the Court of Appeal authorities I accept Mr McKenna’s submission that in the circumstances of this particular case the assault with intent to injure, even taken with the assault on the second complainant, cannot support a starting point of two  years (or two  years four months including the appellant’s personal circumstances).

[14]     While I consider the circumstances of the offending to be serious I also have to take into account the consequences to the victims.  In relation to the first victim there was only one blow and no lasting injury.  I consider that, even taking totality

into account for both charges, no more than 20 months can be supported.

[15]     To that, however, there must be an uplift for the appellant’s poor personal history.   Mr McKenna realistically accepts four months would be appropriate for that.  It would take the starting point for the assaults to 24 months before credit for the guilty plea.  The pre-sentence report is a bleak pre-sentence report.  There are no positive features that could lead to any reduction in that sentence.

[16]     However, I accept the submission for the appellant that something more than

14 to 15 per cent allowed by the Judge was required. Even where, as here, there may be a strong case and the appellant seeks a sentencing indication he is still entitled to a credit for entering an early guilty plea.  The Court will bear in mind that sometimes the process will be prolonged and sentencing indications sought when there may be little point in such an exercise.  In those circumstances the Court could properly take into account the lengthy further time involved in the process when fixing an appropriate reduction for the guilty plea.

[17]     However, in this case I accept that something in the order of 20 per cent would have been appropriate.  The guilty plea was entered on the third appearance after representation by counsel and following the sentence indication.

[18]     The result is that an end sentence for the assaults in the region of 19 months would have been appropriate.

[19]     I then have regard to the breach of release conditions.  I agree with the Judge that  the  matter  is  serious  given  the  previous  history  of  failure  to  comply. Nevertheless I note the circumstances of this particular failure to comply.  While the appellant failed to attend the correct reporting station he did at least contact those that  he  should  have  contacted  and  also  appeared  in  Tauranga  as  opposed  to Hamilton.

[20]     In my judgment four months for that offending, even bearing in mind his earlier offending, is too high.   A sentence of between two to three months would have been appropriate for that.  I agree with the Judge that it must be cumulative.

[21]     The end result is in my judgment that an overall sentence of 21 months would be appropriate for the offending in this case.   When I stand back and look at the sentence imposed of 28 months I accept that it does make the 28 months manifestly excessive.

[22]     The  appeal  is  allowed.    The  sentence  imposed  in  the  District  Court  for injuring with intent is quashed and is replaced with a sentence of 19 months.  On the charge  of  assault  the  sentence  is  nine  months  concurrent  with  two  months’ cumulative on the breach of release conditions, a total of 21 months’ imprisonment.

[23]     I repeat the observations of the District Court Judge that it is for the Parole

Board to consider Mr Bridger’s level of risk to the safety of the community when the issue of parole is considered.

Venning J