Aitchison v The King - [2024] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-264

CRI-2023-409-265 [2024] NZHC 80

BETWEEN
JESS DYLAN AITCHISON

Appellant

AND

THE KING

Respondent

Hearing: 1 February 2024

Appearances:

C G Nolan for the Appellant

B W D Alexander for the Respondent

Judgment:

5 February 2024

JUDGMENT OF HARLAND J

Introduction

[1] Jess Aitchison appeals against a sentence of seven months’ home detention and an order to pay reparation of $2,213.95 imposed in the District Court1 in respect of four charges of breaching a protection order (two of those being representative charges)2, one charge of common assault3, one charge of wilful damage4 and one charge of unlawfully taking a motor vehicle.5 He contends that the sentence imposed was manifestly excessive and the least restrictive sentence that ought to have been imposed was one of community detention and intensive supervision.

1      R v Aitchison [2023] NZDC 27347 [Sentencing notes].
2      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
3      Crimes Act 1961, s 296; maximum penalty one year of imprisonment.
4      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
5      Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.

AITCHISON v R [2024] NZHC 80 [5 February 2024]

[2]The Crown opposes the appeal.

The offending and background matters

[3] The appellant is now 33 years of age. Prior to these charges being laid, he had not appeared before the Court and therefore appeared for sentence as a first-time offender. His offending occurred in the context of the relationship with his former partner ending. She is the victim of his offending.

[4] The appellant and his former partner had been in a relationship for one and a half years. On 27 January 2023, she obtained a temporary protection order against the appellant.

[5] There is reference in the Police summary of facts and the District Court judgment to the appellant insisting that the victim apply to the Court to discharge the protection order and that, if she did not do so by 2 February 2023, he would “air all her dirty laundry and dirty secrets” and “take everyone down”. The victim took these threats seriously and applied to discharge the order on 24 February 2023. I mention these matters by way of background. They are not the subject of specific charges but they do provide a background and context to what happened.

[6]The temporary protection order was discharged on 19 April 2023.

[7] In the afternoon of 3 February 2023, the appellant and his former partner were travelling in her vehicle along Ferry Road. The appellant’s former partner was driving the vehicle. The appellant formed the view that the victim was recording him on her phone. He snatched her phone, abused her and struck her about six times on both arms with his forearm, causing minor bruising. He got out of the vehicle, smashed her phone and took her sim card from it. The appellant then…

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 Aitchison v The King

Details

AGLC: Aitchison v The King [2024] NZHC 80
Case: [2024] NZHC 80
Decision Date: 5 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Jess Dylan Aitchison appealed against his sentence of seven months’ home detention and an order to pay reparation of $2,213.95, imposed in the District Court on charges of breaching a protection order, common assault, wilful damage, and unlawfully taking a motor vehicle. The appellant contended that the sentence was manifestly excessive and that community detention and intensive supervision would have been the least restrictive sentence appropriate in the circumstances. The Crown opposed the appeal, submitting that the sentence was within range and appropriate.

The court examined whether the global starting point of three years was excessive. The court concluded that the 18-month starting point for the unlawful taking charge was at the very highest end of the available range. The court considered an adjustment for totality was necessary, resulting in a sentence of home detention of five months. The court found that community detention and supervision or intensive supervision was not the appropriate outcome and the least restrictive sentence, as the offending was serious and continuous. The appeal was allowed to the extent that the end term of home detention is reduced to five months, but in all other respects, the appeal was dismissed.

The court imposed a sentence of five months’ home detention on the same terms and conditions imposed by the District Court Judge. The order to pay reparation remains in force.

Orders