[1] The appellant was sentenced to a total period of two years and four months’ imprisonment in the District Court on 20 March 2015 with respect to five separate charges. Those charges were two of driving while disqualified (both in the aggravated form), one of unlawfully taking a motor vehicle, and two of theft.

[2] The appellant now appeals against his sentence on the basis that it is manifestly excessive.

[3] The appellant also seeks leave to bring this appeal out of time, being approximately five weeks late. So far as the leave application is concerned, the appellant says the delay arose because he wished to carefully consider counsel’s initial advice and seek further advice before electing to appeal. He contends there has been no prejudice to the Crown here as a result of this short delay and the appeal
has merit.

AFFLECK v THE QUEEN [2015] NZHC 1741 [28 July 2015]

[4] The application for leave to appeal out of time is not opposed by the respondent. In all the circumstances here, I am of the view that it is appropriate for leave to be granted to bring this appeal out of time in terms of s 248(4)(a) Criminal Procedure Act 2011 and I now so order.

[5] Turning now to the grounds for the substantive sentence appeal, the appellant’s contention that the sentence imposed is manifestly excessive is advanced for two reasons:

(a) The starting point adopted in the District Court for the most serious charges was too high; and

(b)Judge Crosbie in the District Court made an error in calculating the quantum of the appellant’s sentence at an important point in the sentencing exercise.

Legal principles on appeal

[6] Section 250(2) of the Criminal Procedure Act 2011 applies here and provides:

250 First appeal court to determine appeal

…

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[7] It is clear too that the appellant is able to appeal the sentence imposed as of right.1 This Court, as first appeal court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed. The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 remains the same as that
under the predecessor regimes in the Crimes Act 1961, s 385(3), and the Summary

1 Section 244 Criminal Procedure Act 2011.

Proceedings Act 1957, s 121(3).2 Toogood J recently captured the essence of the test in Larkin v Ministry of Social Development3 citing Ripia…

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 Affleck v R

Details

AGLC: Affleck v R [2015] NZHC 1741
Case: [2015] NZHC 1741
Decision Date: 28 July 2015

CaseChat Overview and Summary

Dylan William Affleck appeals against his sentence of two years and four months' imprisonment imposed by the District Court on five charges, arguing it is manifestly excessive. The appeal is approximately five weeks late, but the Crown does not oppose the application for leave to appeal out of time. Affleck argues the starting point for the most serious charges was too high and that the District Court Judge made an error in calculating the quantum of his sentence.

The court examines whether there was an error in the sentence and whether a different sentence should be imposed. The court finds that the starting point adopted by the District Court was within range, considering the maximum penalty for the offences and the risk of confrontation. However, the court finds that there was a mathematical error in calculating the quantum of the sentence. The court reduces the sentence by two months to account for the error.

The court quashes the original sentence of two years and four months' imprisonment and substitutes a sentence of two years and two months' imprisonment. The appeal against the sentence is allowed to the extent of the mathematical error.

Orders