Aalderink v Accident Compensation Corporation - [2015] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-91 [2015] NZHC 143

BETWEEN
JAMES EVAN PALMER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2015

Counsel:

H S Edward for Appellant
N Tahana for Respondent

Judgment:

11 February 2015

JUDGMENT OF KATZ J [Sentence appeal]

This judgment was delivered by me on 11 February 2015 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Gordon & Pilditch, Crown Solicitor, Rotorua

Counsel: H S Edward, Edward Law, Rotorua

PALMER v NEW ZEALAND POLICE [2015] NZHC 143 [11 February 2015]

Introduction

[1] On 7 November 2014 the appellant, James Palmer, was sentenced to

15 months’ imprisonment for three breaches of a protection order made under the Domestic Violence Act 1995. Mr Palmer now appeals that sentence on the grounds that it was manifestly excessive and wrong in law.

Approach to appeal

[2] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.1

[3] The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.3

[4] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:4

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

1      Criminal Procedure Act 2011, s 250(3).
2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3      At [33], [35].
4      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[5] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5

Factual background

[6] Mr Palmer and the victim were in a relationship for about five years until late

2008. They have two children together. The relationship appears to have been marred by violence. The victim obtained a temporary protection order against Mr Palmer in late 2008, which he breached in December 2008. He was sentenced to 40 hours community work in respect of that breach.

[7] A final protection order was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 163
Decision Date: 11 February 2015

CaseChat Overview and Summary

The appeal against sentence was brought by James Palmer, the appellant, against the New Zealand Police, the respondent, in the High Court of New Zealand. The appeal was against a 15 months’ imprisonment sentence imposed on Palmer for three breaches of a protection order made under the Domestic Violence Act 1995. Palmer contended that the sentence was manifestly excessive and wrong in law. The legal issues before the court were whether there was an error in the sentence imposed and if the sentence was manifestly excessive.

The court began by noting that under section 250(2) of the Criminal Procedure Act 2011, an appeal against sentence may only be allowed if there is an error in the sentence imposed. The court further explained that the principle of manifestly excessive sentences was well-engrained in the court’s approach to sentence appeals. The court then examined whether the starting point of 14 months’ imprisonment set by the District Court was outside of the appropriate range. The court found that although the starting point was arguably at the upper end of the appropriate range, it was not outside of range.

The court also considered whether the District Court had appropriately taken into account mitigating factors such as Palmer’s completion of domestic violence courses and his participation in a methadone programme. The court found that these factors did not justify a reduction in sentence. The court further considered whether the 25 per cent discount for Palmer’s guilty plea was appropriate. The court found that applying a 25 per cent discount to the sentence of 17 months’ imprisonment would result in an end sentence of 13 months’ imprisonment, which was two months less than the sentence imposed by the District Court.

The appeal was allowed and the sentence of 15 months’ imprisonment was quashed and a sentence of 13 months’ imprisonment substituted on each charge, to be served concurrently. All other aspects of the sentence imposed in the District Court were to remain unchanged.

Orders