Anderson v Police - [2024] NZHC 1826

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-44

[2024] NZHC 1826

BETWEEN
DYLAN JAMES ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 July 2024

Appearances:

H Porter for the Appellant

R Bedggood and R Buckman for the Respondent

Judgment:

5 July 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 5 July 2024 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors:
Crown Solicitor, Wellington
Luke Cunningham & Clere, Wellington

ANDERSON v NEW ZEALAND POLICE [2024] NZHC 1826 [5 July 2024]

Introduction

[1] Mr Anderson appeals his sentence of one year’s imprisonment on a charge of injuring with intent to injure1 imposed by Judge N Wills in the Wellington District Court on 8 May 2024 following a guilty plea.2

[2] The sole issue on appeal is whether the Judge erred by imposing a sentence of imprisonment despite a sentence of home detention being available at Mr Anderson’s home address.

Summary of offending

[3] I adopt Judge Wills summary of the offending which occurred on 8 February 2024 as follows:3

[2] You were at the Wellington High Court in relation to a murder trial and you were there with two gang associates. You were there to support the deceased and the victims were there to support the defendants charged with murder.

[3] The public gallery became disordered and that resulted in the High Court going into a short lockdown and all the gallery attendees left the court. You and other associates approached two victims, in this case [sic] turns on your actions in relation to one of those victims.

[4] What has been clarified for me today is that you kicked the victim causing him to fall to the ground and then you kicked him once in the head before you and others left the immediate area, the result being that this victim lost consciousness and suffered a concussion.

Sentencing decision

[4] Judge Wills identified the aggravating features of an attack on the head while the victim was on the ground leading to moderate injury (loss of consciousness and concussion), involvement of multiple attackers, and gang involvement. The Judge declined to include vigilante action and hate crime as aggravating factors in addition to gang involvement because it would have led to double-counting.

1      Crimes Act 1961, s 189(2). Maximum penalty of 5 years’ imprisonment.
2      Police v Anderson [2024] NZDC 10270 [sentencing decision].
3      Sentencing decision, above n 2.

[5] The Judge placed Mr Anderson’s offending at the lower end of band two of Nuku v R which sets the range for a starting point of up to three years’ imprisonment.4 The Judge then adopted a starting point of 22 months’ imprisonment.

[6] The Judge uplifted the starting point by two months to reflect Mr Anderson’s previous convictions for violent offending.

[7] The Judge arrived at the end sentence of imprisonment for one year after adopting the following credits for personal mitigating factors:

(a)a credit of four months…

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 Anderson v Police

Details

AGLC: Anderson v Police [2024] NZHC 1826
Case: [2024] NZHC 1826
Decision Date: 5 July 2024

CaseChat Overview and Summary

The appeal in Anderson v Police was heard by Gordon J in the High Court of New Zealand, Wellington Registry. Dylan James Anderson appealed his one-year imprisonment sentence imposed by Judge N Wills in the Wellington District Court on 8 May 2024, following a guilty plea to injuring with intent to injure. The sole issue on appeal was whether the sentencing Judge erred by imposing a sentence of imprisonment despite a sentence of home detention being available at Mr Anderson's home address.

The court considered the arguments of both parties regarding the appropriateness of home detention in this case. Counsel for the appellant, Mr Porter, submitted that the sentencing Judge gave undue weight to the perceived risk of family violence arising against Mr Anderson's partner, and that Mr Anderson has matured significantly since his previous offending. He also noted that Mr Anderson was on restrictive bail without incident at the proposed address before being remanded in custody following his guilty plea. On the other hand, counsel for the respondent, Ms Bedggood, submitted that there was no error in the sentence which would require a different sentence to be imposed, and that the sentencing Judge was entitled to place weight on the two Provision of Advice to Courts (PAC) reports when conducting her own assessment of the evidence.

The court found that this was a marginal case where the sentencing Judge was entitled to form her own view on the matter. The court held that the sentencing Judge was correct to find a risk of frustration, arising in the close quarters of the small property, being taken out on the other occupants. The court also found that the sentencing Judge was entitled to place weight on the two PAC reports, although the writer of the second report did not interview Mr Anderson. The court held that there was no material error in the sentencing Judge's analysis which would justify appellate intervention. The appeal against sentence was dismissed.

This case highlights the importance of considering the suitability of the proposed address for home detention, the risk of frustration arising in close quarters, and the weight that can be placed on PAC reports when determining whether to commute a prison term to a sentence of home detention. The court also emphasised the margin of appreciation extended to judges in these decisions.

Orders