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Anderson v R

Anderson v R

Case [2016] NZCA 346 20 July 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/2016
[2016] NZCA 346

BETWEEN	MICHAEL LESLIE ANDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	11 July 2016
Court:	French, Fogarty and Collins JJ
Counsel:	N M Dutch for Appellant K E Hogan and H D Benson-Pope for Respondent
Judgment:	20 July 2016 at 11.00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 8 March 2016 Mr Anderson was convicted after trial before Judge Harding and a jury in the Tauranga District Court of three charges of breaching a protection order.[1] He was sentenced by Judge Harding to 18 months’ imprisonment and ordered to pay $1,000 reparation.[2] Mr Anderson appeals only the third of his convictions and his sentence.
[1]Domestic Violence Act 1995, s 49(1)(a).
[2]R v Anderson [2016] NZDC 6650.
We are dismissing Mr Anderson’s appeal against conviction because no miscarriage of justice occurred when he was convicted.[3] We are also dismissing Mr Anderson’s appeal against sentence because it was not manifestly excessive.[4]

Background

[3]Criminal Procedure Act 2011, s 232(2)(c) and 232(4).

[4]Criminal Procedure Act, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

Mr Anderson and Ms V commenced a relationship in 2011. Ms V described their relationship as one that was “off and on”. In August 2013 Ms V obtained a protection order against Mr Anderson. Their relationship continued, however, until around May 2015.
In June and July 2015 three incidents occurred that resulted in Mr Anderson being convicted of three charges of breaching the protection order.
The first of these incidents occurred on 15 June when Ms V was parked in a supermarket car park. She was sitting in her car with her new boyfriend with the car door open. Mr Anderson drove into the car park in his SUV. He drove his vehicle to where Ms V’s car was parked. Mr Anderson’s vehicle made contact with the open door of Ms V’s car.
The second incident also occurred on 15 June when Mr Anderson broke into the shed at Ms V’s property and took a lawnmower.
The third charge arose from events that occurred from 20–23 July 2015. This is the matter to which Mr Anderson’s appeal relates.
According to Ms V’s evidence, on the evening of 20 July she began receiving unsolicited sexually explicit text messages from men asking to meet with her. Ms V received approximately a dozen messages of this kind. She eventually asked one of the men texting her to telephone her. He did so. During the course of that conversation, Ms V learnt the man had obtained her details from a Facebook page that was linked to a dating website and that the man believed he had been in Facebook communication with Ms V.
Ms V knew she had not created the Facebook page and explained to the unknown man that her former partner was responsible and that she had…

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 R

Details

AGLC: Anderson v R [2016] NZCA 346
Case: [2016] NZCA 346
Decision Date: 20 July 2016 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Michael Leslie Anderson against his conviction and sentence for breaching a protection order. The appeal was dismissed. Anderson was convicted of breaching a protection order in three separate incidents. The appeal was against the third conviction and the 18-month prison sentence imposed. The legal issues before the Court were whether the trial judge erred in admitting certain evidence and whether the sentence was manifestly excessive.

The Court found no miscarriage of justice in the admission of evidence relating to a conversation between the complainant and an unknown male caller. The statements were either not hearsay or were admissible under the hearsay exception for unavailable declarants. The opinion evidence of the complainant that Anderson created a fake Facebook page was also found to be admissible. The Court concluded that even if the evidence was inadmissible, it had minimal impact on the conviction as the complainant's other evidence clearly established Anderson's guilt. The Court also found the 18-month sentence was not manifestly excessive given Anderson's history of similar offences and the severity of the psychological bullying involved.

The Court of Appeal dismissed Anderson's appeal against his conviction and sentence. The conviction and 18-month prison sentence were upheld. The Court noted that the sentence was within the range of sentences imposed for similar breaches of protection orders.

Orders