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Ackland v Police

Ackland v Police

Case [2019] NZHC 312 10 May 2019

Criminal Liability

Sentencing

Culpability Factors

Aggravating Circumstances

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-454-006

[2019] NZHC 312

BETWEEN
JAMIE ROBERT ACKLAND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2019

Counsel:

J A Younger for appellant

D R Davies and E R Pairman for respondent

Judgment:

10 May 2019

JUDGMENT OF COOKE J

Table of Contents

Factual background [6]

District Court decision [11]

Approach to appeal [16]

New offence of strangulation [17]

Relevant features/aggravating circumstances [22]

Appropriate bands [28]

The present case [33]

Ground one: Culpability factors [34]

Ground two: Starting point too high [41]

Ground three: insufficient credit for mitigating factors [51]

Conclusion [54]

[1] On 8 March 2019 Mr Ackland was sentenced by Judge Edwards in the District Court at Palmerston North to two years nine months’ imprisonment on the following charges:1

1 Police v Ackland [2019] NZDC 4208.

ACKLAND v NEW ZEALAND POLICE [2019] NZHC 312 [10 May 2019]

(a)one charge of strangulation;2

(b)one charge of assault on a person in a family relationship,3 and

(c)one charge of assault with a weapon.4

[2] Mr Ackland appeals his sentence on three main grounds. First, he says the District Court Judge erroneously took into account three culpability factors in assessing the starting point of the lead charge of strangulation. Second, he says that the starting point for each term of imprisonment was too high and resulted in a sentence of imprisonment that was manifestly excessive. Third, he says the Judge gave insufficient credit for remorse, mental health, and steps taken towards rehabilitation.

[3] The Police oppose the appeal on the grounds that the starting points for all three charges were within the available range; the Judge took into account totality; and the discounts for personal mitigating factors were appropriate.

[4] The lead charge for the imposition of this sentence was the charge of strangulation under s 189A of the Crimes Act 1961, with the sentences imposed on the other charges served concurrently. The offence of strangulation came into force on 3 December 2018. It is expressed in the following terms:

189A Strangulation or suffocation

Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:

(a)blocking that other person’s nose, mouth, or both:

(b)applying pressure on, or to, that other person’s throat, neck, or both.

[5] I am advised by counsel that this is the first High Court appeal from a decision of the District Court imposing a sentence for strangulation as the lead charge. For that reason, and as I explain in greater detail below, I will address the overall approach to

2      Crimes Act 1961, s 189A, maximum penalty seven years’ imprisonment.
3      Section 194A, maximum penalty seven years’ imprisonment.
4      Section 202C, maximum penalty five years’ imprisonment.

sentencing for the new offence in order to assess whether the present sentence is consistent…

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.

Continue reading Ackland v Police

Details

AGLC: Ackland v Police [2019] NZHC 312
Case: [2019] NZHC 312
Decision Date: 10 May 2019

CaseChat Overview and Summary

The appeal in this case was brought by the appellant, Jamie Robert Ackland, against his sentence for strangulation, assault on a person in a family relationship, and assault with a weapon. The appellant argued that the starting point for the lead charge was too high, that there was insufficient credit for mitigating factors, and that the culpability factors were wrongly taken into account by the District Court Judge. The Police opposed the appeal, arguing that the starting points for all three charges were within the available range, that the Judge took into account totality, and that the discounts for personal mitigating factors were appropriate.

The Court found that the District Court Judge had appropriately identified the relevant factors for sentencing in the present case, and that the sentence was within the appropriate range. The Court further found that the Judge's approach was within range and that the starting point of three years, three months’ imprisonment adopted by the Judge for the strangulation offence was not inappropriate. The Court also found that the Judge had taken into account the appellant's background problems and had given a four month discount, which was appropriate.

In conclusion, the Court dismissed the appeal. The Court found that the sentence imposed by the District Court Judge was within the appropriate range, and that the Judge had appropriately identified the relevant factors for sentencing in the present case. The Court also found that there was no error of principle in the Judge's approach, and that the sentence was not manifestly excessive.

Orders