THOMPSON v POLICE [2017] NZHC 3039

THOMPSON v POLICE [2017] NZHC 3039 [7 December 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI 2017-483-13CRI 2017-483-14CRI 2017-483-15[2017] NZHC 3039BETWEEN HANNON BRENT THOMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2017 (via AVL)Counsel: R J Leith for AppellantC B Wilkinson-Smith and C A Middleton for RespondentJudgment: 7 December 2017JUDGMENT OF SIMON FRANCE J[1] Mr Thompson appeals a sentence of two years and one month' imprisonmentimposed for three offences:1(a) injuring with intent to injure; and(b) two offences of breach of protection order.Facts[2] Mr Thompson became angry when his (most recent) partner returned to thehouse to collect things. He approached the victim in a way that made her think she1 New Zealand Police v Thompson [2017] NZDC 24861.was in danger. She ran away but came back a short time later. This pattern continuedduring the course of which Mr Thompson punched a hole in a bedroom door.Eventually the victim got outside, pursued by Mr Thompson. Mr Thompson pickedup a wooden chair, chased the victim around the car, and eventually caught up withher. He felled the victim with a blow to the back of the head. She fell face forwardonto the concrete causing damage to her face. The victim was hospitalised overnight.[3] Subsequent to this offence, a protection order was made in relation to thevictim. Two months later Mr Thompson on the same day twice visited her address totalk to her. He says he was concerned about where she was intending to move to. Heconsidered it unsafe. After the first visit, the victim had messaged Mr Thompsontelling him not to return and that he was unwelcome. During the second visit, madedespite the message, Mr Thompson became angry and police were called.[4] Over this same period a former partner of Mr Thompson, with whom he sharesa son, obtained a protection order. On successive days Mr Thompson breached theorder by ringing the victim. The purpose seems to have been to get access to his son.[5] Mr Thompson is 30 years old with an extensive criminal record, albeit not onethat has seen him ever sentenced to jail. He has no history of domestic violence, andhas not been the subject of a protection order previously. The pre-sentence reportdraws a link between alcohol consumption and offending. Mr Thompson appears toaccept the need for help in this area, whilst denying it was a factor in the assault. Anotable feature of Mr Thompson's record is a large number of breach offencesconcerning community work and supervision. He also has four drink driving offences,albeit the last was in August 2015.Sentencing[6] The Judge assessed the injuring offending as falling squarely within band twoof R v Nuku.2 The Judge noted it was an attack to the head with a weapon. The victim2 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.was vulnerable and there was a breach of trust.3 A starting point of two years'imprisonment was taken.[7] The Judge then imposed two uplifts for the protection order breaches – threemonths' and six months'. The breach in relation to the victim of the assault was viewedas particularly serious. It was noted it also involved a breach of bail conditions.[8] A discount of 25 per cent for the guilty pleas was then imposed, leaving asentence of two years and one month' imprisonment. It is to be noted the Judge alsoquashed nearly $11,000 of fines without any additional penalty. The last paymentmade by Mr Thompson was in January 2001. It seems that just as with conditions ofcommunity work, supervision and bail, Mr Thompson ignores the fines.Appeal submissions[9] It is submitted the starting point for injuring with intent was too high given itwas a single strike to the head and the weapon was a chair.[10] The total uplift of nine months' for two breaches is submitted to be excessive.They were the first breaches by Mr Thompson and involved no incorrect conduct otherthan the contact. The contact with the assault victim was motivated by a desire to help,and the other breach by a wish to arrange contact to see his son. Mr Thompson hadnot long been subject to such orders and accepts the wrongness of his conduct. He hasnow taken steps in the Family Court concerning access to his son.[11] Finally, it is submitted that there should have been credit for personalmitigating factors, particularly remorse. The pre-sentence report writer accepted theremorse was genuine. Mr Thompson acknowledged the need for help with alcohol,and also had enrolled in an anger management course prior to sentencing. He hadoffered to participate in a restorative justice programme.3 It is common ground on the appeal that no breach of trust is involved. The other three factors areself-evident and not disputed.Decision[12] There is no merit in the challenge to a two year starting point for what was ashameful attack on a scared woman running around a car to avoid Mr Thompson whowas then brandishing a chair. The act of hitting her in the back of the head such as tofell the victim carried real risks.[13] The total nine month uplift for the protection order breaches is more open tochallenge. Emphasis could be given to the fact that the orders were new, these werethe first breaches and the conduct, at least to the mother of his child, was comparativelyinnocuous.4 Given these factors nine months' is at least stern.[14] However, the view taken by the District Court was open to it if differentemphasis is taken. Two separate orders, both breached within a short time of beingimposed by a man who has a history of ignoring court ordered restraints. The contactwith the assault victim was particularly troubling, and any claim to good motivationfails in the face of the second visit. Mr Thompson was expressly told not to come andthat he was not welcome. He did so anyway and then got angry, causing further alarmand distress.[15] As for personal mitigating factors, there was no uplift for offending againstbail conditions, nor for the cancellation of substantial fines. These factors more thanoffset any denied allowance for remorse.[16] The appeal is dismissed. Mr Leith addressed the Court on Mr Thompson's jobprospects but their relevance primarily arises if a non-custodial sentence were anavailable option.____________________________Simon France J4 That is not to ignore that often this offending is part of a pattern, and the impact should not beassessed only by reference to the current act. The victim impact statement here reflects the roleof context.