Anderson v Police - [2023] NZHC 3581

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].

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.

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Details

Case: [2023] NZHC 3581
Decision Date: 8 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Jackson Tokomanahi Anderson appealed against a sentence of 26 months' imprisonment imposed by Judge B R Pidwell for breaching home detention, unlawfully taking a motor vehicle, theft of petrol, and theft of jewellery. The appeal grounds were the starting point being too high and inadequate discounts for personal circumstances. The court held that the appeal would only be allowed if the sentence was manifestly excessive or wrong in principle. The court found that there was a methodological error in considering the totality principle after applying the guilty plea discount, 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. 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