Leatherby v NZ Police HC Palmerston North CRI 2008-454-45

[2008] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-45

PAUL CHARLES LEATHERBY

v

N Z POLICE

Hearing:         10 September 2008

Counsel:         J G Turnbull and K Becker for the Appellant

P Murray for the Respondent

Judgment:      11 September 2008

JUDGMENT OF MILLER J

[1]      Mr  Leatherby  appeals  against  a  sentence  of  12  months  imprisonment imposed on a charge of assault with a weapon, a butcher’s knife, contrary to s202C of the Crimes Act 1961.   The offence carries a maximum sentence of five years imprisonment.

[2]      The offence was committed in 26 May 2007, and after two non-appearances Mr Leatherby elected trial.  Depositions were held on 8 January, with oral evidence of two witnesses being taken.  Mr Leatherby was arraigned on 9 January and pleaded guilty.

[3]      The Judge recorded that the offence occurred at the Potaka Marea at Opanaki. Mr  Leatherby  and  members  of  his  extended  family  were  there  following  the

PAUL CHARLES LEATHERBY V N Z POLICE HC PMN CRI 2008-454-45 11 September 2008

unveiling of his mother’s headstone.  He became heavily intoxicated.  Evidently he took umbrage at the victim, whom he accused of harassing him throughout the day, because he left the room in which he was drinking with others and returned, walking straight up to the victim and striking him once on the side of the head with a butcher’s knife.  He was then overpowered and the knife was taken from him.  The victim suffered a 1.5 centimetre cut just above his left eye.  It bled profusely, and he was very shaken.

[4]      The Judge noted that Mr Leatherby has 13 previous convictions, but none were for violence.  He recorded that Mr Leatherby has been receiving counselling for problem gambling and alcoholism.  He also took into account the circumstances of the offending, notably the unveiling of the headstone, and emphasised the need for deterrence and the impact on the victim.  He noted aggravating features;  use of a knife to the head of the victim, a degree of premeditation immediately before the assault, and the previous convictions.   In mitigation, Mr Leatherby had pleaded guilty at an early stage, and he expressed remorse, and had sought counselling for alcohol problems.  He was assessed as being at low risk of further offending and the probation officer had noted that this particular offence was not typical of his past offending.  At the same time, he was assessed as having no motivation to address his rehabilitative needs.

[5]      The Judge took a starting point of 18 months and reduced that to 12 months for the mitigating factors.

[6]    Appearing  on  instructions,  Mr  Turnbull  highlighted  the  medical considerations and the Judge’s failure to consider home detention.  There is nothing in either of these points.   The pre-sentence report referred to medical conditions, being  tendonitis,  a  knee  injury  and  spinal  injury,  which  together  meant  that Mr Leatherby was on ACC and unlikely to return to work.  Those conditions are not said  to  have  contributed  to  his  offending.    Mr  Leatherby  lives  at  a  hotel  in Woodville, and the probation officer considered that it was not suitable for home detention or community detention for that reason.  Mr Leatherby had said he would look around for an alternative address if necessary, but made it clear that he favoured his current address.  In the absence of evidence to the contrary, I do not see how the

Judge could have opted for home detention.  Indeed, there is nothing in his reasons to suggest that it was argued.

[7]      However, the question arises whether the starting point, and hence the end sentence, were too high having regard to comparable cases.  The guideline judgment of R v Taueki [2005] 3 NZLR 372 applies by analogy, with the starting points being reduced in light of the lesser charge of assault with a weapon. I have referred to a number of comparable cases: R v Hensley CA50/02 18 April 2002, Moase v N Z Police HC WAN 8 September 2004, Mann v NZ Police HC INV 19 August 2005

Frater J.  In the last of these judgments, Frater J reviewed a number of comparable decisions.  For example, in Hensley the appellant had taken up a knife and tried to stab  a  man,  who  received  minor  scratches,  following  some  provocation.    The sentence of nine months imprisonment imposed in the District Court was quashed. In Moase, the appellant took it on himself to attack the victims with a beer bottle without provocation, in circumstances of intoxication.  By reference to the Court of Appeal decision in R v Chamberlain CA423/98, a final sentence of five months was adopted on appeal.

[8]      In this case, the offence occurred after the unveiling of the headstone, and after what the appellant took to be provocation by the victim.   Although he had previous convictions, none involved violence.  In the circumstances, I consider the sentence is manifestly excessive.  The starting point ought to have been nine months, in my view, resulting in an end sentence of six months imprisonment.  The appeal is allowed and six months imprisonment substituted.

Miller J

Solicitors:

G J Turnbull, Porirua for the Appeallant

Crown Solicitor’s Office, Palmerston North for the Respondent