Sampson-Arps v Police

[2012] NZHC 2360

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000070 [2012] NZHC 2360

SHANE SAMPSON-ARPS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 September 2012

Appearances: A G James for Appellant

K J Basire for Respondent

Judgment:      13 September 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of the District Court, Judge Holderness, on 12 July 2012.  The appellant was out on the town and had been drinking.  The offence occurred about midnight.  The victim was sitting with two young women on a grassed area.  They were eating some takeaway food.  After making a remark of some sort directed at the victim the appellant ran at him and kicked him.  The Judge was satisfied it was with considerable force.  The offender was wearing steel-capped boots.  As a result of what was a single kick the victim suffered a fractured orbital bone and a fractured and lacerated nose.  He was taken to hospital where surgery was performed.   He remained in hospital for four or five days and was off work for a period of some weeks.  A plate was inserted in his cheek to remedy the fractured

orbital bone and his nose had to be re-set.   He was a visitor to this country on a

SAMPSON-ARPS V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000070 [13 September 2012]

working holiday.   The victim has suffered significant financial loss.   More importantly, he went through a period where he experienced loss of balance, dizzy spells and numbness in his top teeth, headaches and problems with being able to focus properly.

[2]      The Court of Appeal in the decision of Harris[1]  on 3 December building on the leading case of Taueki[2] envisaged three bands for offences of this sort, bands two and three being distinguished by degree of injury:   band two where injuries are moderate a sentence of up to two years; and band three for serious injuries, sentences

from 18 months up to a maximum of five years.

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

[2] R v Taueki [2005] 3 NZLR 372 (CA)

[3]      Mr James agrees that this is a band three classification but argues that the starting point taken by the Judge of three years, three months is two high.  The Judge took that starting point, gave the appellant full credit for the guilty plea and had an end sentence of two years, five months.

[4]      Given  the  distinction  between  sentencing  for  this  type  of  crime  being governed principally by the degree of injury caused to the victim I am also satisfied that this is a band three case and I am also satisfied from the material facts of the offending which I have just set out that Judge Holderness was quite entitled to select three years, three months as the starting point.

[5]      I have heard submissions from Mr James arguing that this conduct had a dimension of recklessness which lowers his client’s culpability.  Certainly his client, being intoxicated and acting almost impulsively, would not have anticipated the degree of damage that he caused.  But, he cannot have forgotten that he was wearing boots with steel caps and his conduct of running over and kicking was clearly deliberate.  In these circumstances I think the degree of injury that he caused justifies the sentence.  It is also somewhat disturbing in the probation officer’s report that the

appellant appeared to lack insight into the gravity of this offence.

[6]      For  these  reasons  I  see  no  reason  to  disturb  the  judgment  of  Judge

Holderness. The appeal is dismissed.

Solicitors:

Alistair James, Christchurch [e-mail]

Raymond Donnelly & Co, Christchurch,  [e-mail]