IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-445
[2023] NZHC 3581
BETWEEN JACKSON TOKOMANAHI ANDERSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 December 2023 Appearances:
M J Taylor-Cyphers for Appellant T A Veikune for Respondent
Judgment:
8 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 8 December 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
M J Taylor-Cyphers, Barrister, Auckland Meredith Connell, Auckland
ANDERSON v NEW ZEALAND POLICE [2023] NZHC 3581 [8 December 2023]
[1] This is an appeal against a sentence of 26 months’ imprisonment imposed by Judge B R Pidwell on the following charges:1
(a)on 24 January 2023, breaching home detention;
(b)on 26 January 2023, unlawfully taking a motor vehicle;
(c)on 27 January 2023, theft of petrol valued at $50; and
(d)on 28 January 2023, theft of jewellery valued at over $10,000.
[2]The grounds of appeal are:
(a)the starting point imposed by the sentencing Judge was too high due to a failure to take into account totality in setting an adjusted starting point; and
(b)inadequate discounts for personal circumstances.
[3]In particular, additional discounts are sought for:
(a)mental health;
(b)addiction and rehabilitative efforts;
(c)remorse and willingness to participate in restorative justice; and
(d)hardship and deprivation.
1 Police v Anderson [2023] NZDC 17982.
Legal principles
[4] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4
[5] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5
[6] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
[7] An exception is where a mathematical error has resulted in a sentence more severe than the sentencing judge intended. Such an error must be corrected, giving effect to the judge’s intentions even if the sentence imposed was within the available range.7 Conversely, an error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate.8
[8] The practical effect of these general principles is that the appellate court does not just start afresh or substitute its own opinion. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.9
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
Keep reading for free
Create a free CaseChat account to read Anderson v Police and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] NZHC 3581
- Decision Date
CaseChat Overview and Summary
The court's decision was based on the principles that the appellate court does not indulge in mere tinkering with a sentence, and it generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The court also considered the two-step methodology for sentencing, which requires the calculation of the adjusted starting point and the incorporation of all aggravating and mitigating factors personal to the offender. The court found that the sentencing judge had made an error in applying the totality principle at the wrong stage, but this error favoured the appellant. The court also found that the uplift for previous convictions was applied at the wrong stage, which also favoured the appellant. However, the court did not find sufficient evidence to support the appellant's claim for additional discounts for mental health, addiction, rehabilitative efforts, remorse, and hardship. The court concluded that the sentence was not manifestly excessive or wrong in principle, and the appeal was dismissed. The court's decision was based on the principles that the appellate court does not indulge in mere tinkering with a sentence, and it generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The court also considered the two-step methodology for sentencing, which requires the calculation of the adjusted starting point and the incorporation of all aggravating and mitigating factors personal to the offender. The court found that the sentencing judge had made an error in applying the totality principle at the wrong stage, but this error favoured the appellant. The court also found that the uplift for previous convictions was applied at the wrong stage, which also favoured the appellant. However, the court did not find sufficient evidence to support the appellant's claim for additional discounts for mental health, addiction, rehabilitative efforts, remorse, and hardship. The court concluded that the sentence was not manifestly excessive or wrong in principle, and the appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.