WENDT v NEW ZEALAND POLICE [2020] NZHC 305

WENDT v NEW ZEALAND POLICE [2020] NZHC 305 [27 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-331[2020] NZHC 305BETWEEN JOSHUA WENDTAppellantAND NEW ZEALAND POLICERespondentHearing: On the papers (last submission received 3 February 2020)Counsel: S-S Ou for appellantJ Phillips for respondentJudgment: 27 February 2020JUDGMENT OF KATZ JThis judgment was delivered by me on 27 February 2020 at 11:30amRegistrar/Deputy RegistrarSolicitors: Meredith Connell, Office of the Crown Solicitor, AucklandCounsel: S-S Ou, Barrister, AucklandIntroduction[1] Following a Judge-alone trial in the District Court, Joshua Wendt was foundguilty of assault with intent to injure.1 He was sentenced to 180 hours of communityservice, a twelve-month supervision order, and an emotional harm payment of $800 tothe victim.[2] I quashed Mr Wendt's conviction for assault with intent to injure on appeal,and substituted a conviction for the lesser charge of common assault.2 It was commonground between counsel that I approach the matter as, in effect, a sentence appeal andre-sentence Mr Wendt, rather than remit the matter to the District Court.3 Accordingly,following delivery of my judgment, counsel for both parties filed further submissionsas to the appropriate sentence.Starting Point[3] There is no tariff case for common assault. Circumstances can vary widely.[4] The facts of Mr Wendt's offending are fully set out in my earlier judgment.4In summary, Mr Wendt was in a casual relationship with his former flatmate, who isthe victim of his offending. He returned home drunk and angry one night and, afterthrowing his beer can against the wall, grabbed the victim by the neck with one hand.Her back was against the wall. The pressure was not enough to restrict her breathingor circulation. Understandably, however, it was a very frightening experience for her.After a minute or two Mr Wendt pushed the complainant away. She stumbled but didnot fall. She did not suffer any injuries.[5] The major aggravating factor is that Mr Wendt placed his hand on thecomplainant's neck/throat area. That is an inherently dangerous act. Although herbreathing was not interfered with, any increase in pressure could have had very seriousconsequences. Further, the attack occurred in a domestic setting and involved asignificant degree of intimidation.1 Police v Wendt [2019] NZDC 21921.2 Pursuant to s 234(2) of the Criminal Procedure Act 2011; Wendt v Police [2019] NZHC 3480.3 Pursuant to s 234(5) of the Criminal Procedure Act 2011.4 Wendt v Police [2019] NZHC 3480.[6] The offending is not at the bottom end of the range of common assault charges,but neither is it as serious as cases like Mann where the victim was knocked over bythe force of the assault, or Dickerson, where the assault was committed while on bailfor similar offending.5 Having regard to broadly similar cases, a starting point of fivemonths' imprisonment is appropriate.Personal Aggravating and Mitigating Factors[7] The only aggravating personal factor suggested is Mr Wendt's previous similaroffending in 2008 and 2009. The Crown suggests that a one-month uplift would beappropriate. I agree.[8] There appear to be no personal mitigating factors.Community Work[9] The Sentencing Act 2002 requires the Court to impose the least restrictivesentence that is appropriate in the circumstances.6 A sentence of 180 hours ofcommunity work was imposed in the District Court. This reflected, however, thatMr Wendt had been convicted of the more serious charge of assault with intent toinjure (which carries a maximum sentence of three years' imprisonment)7 rather thancommon assault (which carries a maximum sentence of one year's imprisonment).8[10] It is arguable that 180 hours of community work would still be within range,even on the present conviction (albeit at the upper end of the available range).However, to reflect that Mr Wendt has now been convicted of a lesser charge, it isappropriate, in my view, to reduce his sentence from 180 hours of community work to140 hours of community work. Mr Wendt is entitled to credit for the fact that hisoriginal conviction was overturned on appeal, and a conviction for a lesser offencesubstituted. I am satisfied that a sentence of 140 hours community work, together with5 Dickerson v Police [2016] NZHC 802; Police v Vuetaki [2016] NZHC 2515; Mann v Police [2012]NZHC 2613.6 Sentencing Act 2002, s 8(g)7 Crimes Act 1961, s 193.8 Crimes Act 1961, s 196.supervision and an emotional harm payment to the victim, will meet the sentencingprinciples of accountability, deterrence, and denunciation.Sentence[11] The sentence imposed in the District Court is quashed. In substitution for thatsentence, I sentence Mr Wendt to:(a) 140 hours of community work (cumulative on any current sentence ofcommunity work);9(b) 12 months of supervision; and(c) an emotional harm payment of $800 to the victim.[12] I note that the District Court considered it important that, as part of hissupervision, Mr Wendt attend a full anger management/Living Without Violenceprogramme as soon as possible, to minimise the risk of reoffending. I share that view.____________________________Katz J9 At the time of sentencing in the District Court Mr Wendt had seven hours of community workoutstanding on a previous sentence.