Andrew v Police - [2015] NZHC 2987

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000035 [2015] NZHC 2987

BETWEEN
MARK EDWARD ANDREW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 November 2015

Appearances:

J A Westgage for the Appellant
R D Smith for the Respondent

Judgment:

27 November 2015

JUDGMENT OF NATION J

Introduction

[1] On 29 September 2014, Judge Phillips sentenced Mr Andrew to concurrent sentences for an effective term of two years and one month’s imprisonment on the following charges:1

(a) male assaults female;2

(b) intimidation;3

(c) two charges of burglary;4

(d) various charges of theft and obtaining by deception;5

1      Police v Andrew DC Dunedin CRI-2014-012-001409, 29 September 2014.
2      Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
3      Summary Offences Act 1981, s 21(1)(a). Maximum penalty three months’ imprisonment or
$2,000 fine.
4      Crimes Act 1961, s 231(1)(b). Maximum penalty ten years’ imprisonment.
5      Crimes Act 1961, ss 219, 223(d), 240 and 241. Maximum penalty three months’ imprisonment.

ANDREW v POLICE [2015] NZHC 2987 [27 November 2015]

(e) failing to report to a probation officer;6 and

(f) breach of community work.7

[2] Judge Phillips gave Mr Andrew a sentencing indication on 25 September

2014. At the time, Mr Andrew was represented by Ms Saunderson-Warner. The Judge summarised the charges he faced and what was involved with the offending. He referred to Mr Andrew’s alcohol addiction as the main influence in all his offending. He referred to his prior criminal history and the submissions he had received from the police and Ms Saunderson-Warner. The Judge went through the views he would come to adopting the Taueki approach.8 He said the cumulative end sentence, after allowing for totality, would be two years and one month’s imprisonment.

[3] Mr Andrew pleaded guilty on 26 September 2014. He was sentenced on 29

September 2014.

[4] On 2 October 2015, Mr Andrew filed from prison his own notice of appeal against sentence. The notice of appeal indicated that he was appealing against sentences of more than two years for two burglaries. In his notice he said they should have been treated the same as shoplifting involving theft of property worth less than $500 and the maximum penalty would have been thus six months’ imprisonment.

Leave to appeal out of time

[5] Mr Andrew acknowledged that his appeal was out of time but sought an extension. His explanation for the delay was “lack of information provided by lawyer”. Mr Westgate, representing Mr Andrew on appeal, stressed that there would be no prejudice if leave was granted to bring the appeal.

[6] The police oppose the granting of leave in the particular circumstances of this case.

6      Sentencing Act 2002, s 71(1)(a). Maximum penalty three months’ imprisonment or $1,000 fine.
7      Sentencing Act 2002, s 71(1)(d). maximum penalty three months’ imprisonment or $1,000 fine.
8      R v Taueki [2005] 3 NZLR 372 (CA).

[7] Mr Smith, for the police, acknowledged that there would not be significant prejudice to the police in dealing with the appeal if…

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 Andrew v Police

Details

AGLC: Andrew v Police [2015] NZHC 2987
Case: [2015] NZHC 2987
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of Andrew v Police involved Mark Edward Andrew appealing against his sentence. Mr Andrew had been sentenced to concurrent sentences for an effective term of two years and one month’s imprisonment for charges including male assaults female, intimidation, burglary, theft, and obtaining by deception. He sought leave to appeal against his sentence on the basis that two charges of burglary should have been treated as shoplifting involving theft of property worth less than $500, with a maximum penalty of six months’ imprisonment. The primary issue before the Court was whether Mr Andrew's appeal, which was out of time, should be allowed. The Court needed to determine if the delay in filing the appeal was reasonable and if the granting of leave would be in the interests of justice.

The Court considered the reasons for the delay, the merits of the proposed appeal, and the extent of the impact on others similarly affected and on the administration of justice. While Mr Andrew argued that his delay was due to a lack of information provided by his lawyer, the Court found his explanation unsatisfactory. The Court observed that Mr Andrew had the benefit of legal advice in relation to the sentencing indication and had legal representation throughout the process. The Court also found that the sentence imposed was appropriate given the totality of the offending and the need for deterrence and protection of the public. The Court concluded that there was little merit in the appeal and that granting leave would not be in the interests of justice. Therefore, Mr Andrew's application for leave to appeal was declined.

The final orders of the Court were that Mr Andrew's application for leave to appeal against his sentence was declined. The Court did not grant permission for Mr Andrew to appeal the sentence, and the original sentence of two years and one month’s imprisonment remained in place.

Orders