NORTJE v NEW ZEALAND POLICE [2019] NZHC 334

NORTJE v NEW ZEALAND POLICE [2019] NZHC 334 [4 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-418[2019] NZHC 334BETWEEN JAMES NORTJEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 March 2019Appearances: S J Galler for AppellantS Teppett for RespondentJudgment: 4 March 2019JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 4 March 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Nortje pleaded guilty in the District Court to a charge of assault with intentto injure. On 19 November 2018, Judge G A Fraser rejected Mr Nortje's applicationfor a discharge without conviction under s 106 of the Sentencing Act 2002.1 The Judgethen sentenced Mr Nortje to two months community detention.[2] Mr Nortje appeals against sentence on the basis that the Judge ought to haveimposed a sentence of community work rather than community detention.The offending[3] The charge was laid as a result of an incident that occurred on the morning ofSunday 1 October 2018. On that date Mr Nortje was with his partner at an apartmentwhere they were living. The victim of Mr Nortje's offending was his partner's formerboyfriend, who lived in the same apartment complex.[4] Mr Nortje and his partner got into an argument. The victim arrived a fewminutes later and Mr Nortje let him into the apartment. After the victim had enteredthe apartment, Mr Nortje approached from behind and punched him numerous timesin the back of the head. This caused the victim to fall to the ground. Mr Nortje thencontinued to punch him, hitting him around his face and head.[5] Mr Nortje then let the victim get up, at which point the victim tried to helpMr Nortje's partner leave the apartment. Mr Nortje ran towards the victim andknocked him to the ground again with a forceful shoulder charge. He then kicked himrepeatedly to the head and left ear area whilst he was on the ground. A short time laterboth Mr Nortje's partner and the victim managed to escape from the address and callthe police. When the police asked Mr Nortje for an explanation, he said he needed toput the victim in his place, and that this "had been coming for a long time".[6] As a result of the offending the victim suffered sustained multiple injuriesincluding a bleeding nose, a cut on the bridge of his nose and bleeding from his leftear. He also suffered contusions. The Judge recorded that the offending has also hadvery serious emotional and financial consequences for the victim.1 New Zealand Police v Nortje [2018] NZDC 27321.The sentence[7] Counsel for the police contended the offending warranted a starting point ofaround 12 months imprisonment, but accepted that a community-based sentence couldachieve the sentencing purposes of deterrence and denunciation. The Judge adopteda starting point of four months community detention. He then reduced that by onemonth to reflect rehabilitative steps Mr Nortje had taken and a further month to reflecthis guilty plea. This resulted in the end sentence of two months community detention.The sentence requires Mr Nortje to be present at his home address between the hoursof 9 pm and 6 am each day.Argument on appeal[8] On Mr Nortje's behalf, Mr Galler has referred me to sentencing authorities inwhich sentences of community work have been imposed for offending that hecontends is of similar, or greater, seriousness than the offending in the present case.2He submits the Judge erred in principle by imposing a sentence of communitydetention and ought to have imposed the lesser sentence of community work.[9] Mr Nortje has already served one-half of the sentence the Judge imposed.When I asked Mr Galler why Mr Nortje seeks an alternative sentence at this late stage,he advised me that Mr Nortje feels uncomfortable being out and about in thecommunity during non-curfew hours wearing an electronic bracelet. He saysMr Nortje is also concerned that the curfew may interfere with a job offer he hasreceived for a position as an unregistered electrician.Decision[10] I consider Mr Nortje was extremely fortunate that the Judge adopted a startingpoint of just four months community detention. Offending involving an unprovokedand sustained attack of this seriousness could easily have attracted a starting point ofsix to 12 months imprisonment, notwithstanding the absence of previous relevantconvictions. A sentence of home detention could also easily have been justified given2 Mizsey v New Zealand Police [[2017] NZHC 3130; SS v New Zealand Police [2015] NZHC 3103.the ongoing effects of the offending on the victim. The Judge therefore adopted anextremely lenient approach in relation to the issue of starting point.[11] For these reasons I fail to see how the end sentence of two months communitydetention could possibly be viewed as manifestly excessive or wrong in principle.Result[12] The appeal against sentence is dismissed.Lang JSolicitors:Crown Solicitor, AucklandCounsel:S J Galler, Barrister, Auckland