R v Eru [2018] NZDC 4291

Published 18 May 2018

Wounding with intent to injure — application for a final protection order — Sentencing Act 2002, s 123B — Flavell v R [2011] NZCA 361 — R v Taueki [2005] 3 NZLR 372 (CA) — Hetherington v Police [2015] NZHC 1829 — Nuku v R [2012] NZCA 584 — Surrey v Surrey [2010] 2 NZLR 581 — K v G [protection order] [2009] NZFLR 253 — Colledge v Hackett [2000] NZFLR 729. The defendant was sentenced for assaulting the victim, after making a threatening comment and obtaining a hammer. The victim was attacked to the head with the hammer resulting in swelling and an abrasion to her scalp. The court found that victim vulnerability was not an aggravating factor, with reference to "Flavell" and "Taueki". The court noted that vulnerability goes beyond the imbalance of strength and power between a male defendant and a female victim. The court found that there was premeditation, and distinguished between the premeditation, use of the hammer as a weapon and an attack to the head. The defendant was sentenced to 20 months' imprisonment for the offending. In considering an application for a protection order, the court noted that the victim had signed a template document issued by the police. The document, in which the victim acknowledged an understanding that the defendant had been convicted and sentenced was signed before the defendant was convicted. The court further pointed out that it had old documentation before it and that there was no current or updated information. Therefore the court did not know whether the victim still did not object to the making of a protection order or if she still believed that she was at risk. The court noted that the issue of "necessity" must be properly considered when looking at whether a protection order should be made and that it is an essential requirement. The court observed that in the time between the offending and the sentencing, no application for a protection order had been made to the Family Court and that the Court had no way of knowing if this was because the victim no longer considered that she needed a protection order. The court refused to grant a protection order under the Sentencing Act with the information that it had been provided. Judgment Date: 7 March 2018.