KELLY v R [2018] NZCA 347

KELLY v R [2018] NZCA 347 [3 September 2018]"NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFTHE VICTIM'S NAME REMAINS IN FORCE."IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA198/2018[2018] NZCA 347BETWEEN RODGER THOMAS KELLYAppellantAND THE QUEENRespondentHearing: 16 August 2018Court: Kós P, French and Miller JJCounsel: C D Savage for AppellantR P Bates for RespondentJudgment: 3 September 2018 at 3.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Kelly was sentenced after trial to an effective term of 27 months'imprisonment on five charges of violence, or threatened violence, against his formerpartner.1 He now appeals, saying that the sentence was manifestly excessive.1 R v Kelly [2018] NZDC 6431.The offending[2] The convictions arise from two incidents, one at the victim's home in Dunedinand the other during a road trip in the North Island. They were separated in time bysome four months.[3] The first set of charges were described by Judge Crosbie as follows:[4] The [Dunedin] offences arose out of arguments, which werecommonplace in the relationship, about a friend's vehicle with you walkinginto the house and the kitchen area towards her and headbutting her. She leftand returned expecting an apology. Then what occurred was a headbutt twiceas hard as the one before. Her evidence was that she "saw stars". Then therewere a series of representative charges of threats to kill her, whichimmediately followed the second headbutting incident. Those threats referredto you taking "her breath away" and/or killing her. The nature of the threat issimilar to what we heard being said in relation to the other charge.The two headbutts were the subject of two charges of male assaults female, and thethreats were covered by one representative charge of threatening to kill.[4] The "road trip" incident was described by the judge as follows:[5] The separate male assaults female that occurred in the van happenedwhile she was making a noise sucking a lolly. She describes being warnedabout making that noise and then being "backhanded" by you across the face.[6] The final charge has you threatening her at one point of the trip aboutnot getting back to Dunedin alive and taking her breath away/killing her.As that passage records, the charges were male assaults female and threatening to kill.[5] The impact on the victim was severe. She speaks of deep ongoing anxiety.She is plainly struggling to achieve some sense of normality following the offending.The sentence[6] The Judge constructed the sentence in this way:2(a) He took a starting point of nine months for the two male assaults femalecharges at the victim's home.2 At [19]–[23].(b) He added nine months for the threatening to kill charge, noting themaximum penalty as seven years' imprisonment.(c) He added 13 months for the "road trip" charges, being four months forthe male assaults female and nine months for the threat to kill.(d) To the resulting total of 31 months he added three months for relevantprevious convictions. These include a number of assaults, some of adomestic nature.(e) He made an adjustment for totality, bringing the effective sentencedown to 27 months.[7] There were no mitigating factors. Mr Kelly continues to deny the offences.[8] The actual sentences imposed, as recorded in the warrants to detainthe appellant, were as follows:(a) The victim's home: nine months' imprisonment for the two maleassaults female charges; and nine months' imprisonment for thethreatening to kill charge, cumulative on the sentence for the maleassaults female charges.(b) The road trip: eight months' imprisonment for the male assaults femalecharge; and nine months' imprisonment for the threatening to killcharge, cumulative on the sentence for the other threatening to killcharge.The appeal[9] Mr Savage, who appeared for Mr Kelly, argued that the starting points weretoo high. He submitted that the threats to kill were vague — they were expressed asthreats to "take your breath away" — and it is necessary not to double count byincreasing the starting point for actual violence that was the subject of separatecharges. Counsel sought to compare this case to others, notably R v Sharma andR v Falke.3Discussion[10] There is no guideline judgment for male assaults female or threatening to kill.Gravity and culpability may vary widely and each case must be considered on its ownfacts.[11] The appellant was fortunate to have the headbutts charged as male assaultsfemale. A headbutt can cause serious injury, especially when, as in this case, theassailant is very much larger than his victim.[12] So far as the threats are concerned, Judge Crosbie heard the evidence and waswell placed to gauge the seriousness of the offending. He noted the abusiverelationship and the actual violence used.4 While it is important not to double count,the Judge was right to conclude that in this setting the threats were meant to be, andwere, taken seriously.5[13] We are not persuaded that the starting points were excessive or that the Judgeerred in the way he structured the sentence. Although it was not put in this way inargument, in our opinion the appeal comes down to the allowance made for totality.As to that, we are not persuaded that an effective sentence of 27 months for thisoffending was manifestly excessive.Result[14] The appeal is dismissed.Solicitors:Public Defence Service, Dunedin for AppellantCrown Solicitor, Dunedin for Respondent3 R v Sharma [2017] NZHC 2925; and R v Falke [2017] NZHC 951.4 R v Kelly, above n 1, at [2].5 At [7] and [12].