Andrews v The Queen - [2018] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0056

[2018] NZHC 3216

BETWEEN
RAWINIA ANDREWS

Appellant

AND

THE QUEEN

Respondent

Hearing: 7 December 2018

Appearances:

G A Walsh for the appellant K C Whyte for the respondent

Judgment:

7 December 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
Gerard Walsh, Barrister, Hamilton Almao Douch, Hamilton

ANDREWS v R [2018] NZHC 3216 [7 December 2018]

[1] Rawinia Andrews appeals her sentence of two years’ imprisonment imposed by Judge Cocurullo in the District Court at Hamilton on 24 September 2018.1

[2] Ms Andrews was convicted of a spree of dishonesty offending for which she received 14 charges. These were variously for: burglary (three charges),2 dishonestly using a document (two charges),3 theft under $500 (four charges),4 theft between $500- 1,000 (two charges),5 theft over $1,000,6 common assault,7 and breach of intensive supervision.8

Issues

[3] Ms Andrews’ counsel, Gerard Walsh, contends the sentence is manifestly excessive. He says the Judge erred by adopting a manifestly excessive starting point; and applying excessive uplifts for the balance of offending, and previous convictions.

[4] I must allow Ms Andrews’ appeal only if I am satisfied there is an error in the sentence, and a different sentence should have been imposed. In any other case, I must dismiss the appeal against sentence.9

[5] The approach previously taken by courts on sentencing appeals continues to apply,10 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.11

[6] I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is ‘manifestly

1      New Zealand Police v Andrews [2018] NZDC 20089 [“Sentencing decision”].
2      Crimes Act 1961, s 23(1)(a). Maximum sentence is 10 years’ imprisonment.
3      Section 228(b). Maximum sentence is seven years’ imprisonment.
4      Sections 219 and 223(d). Maximum sentence is three months’ imprisonment.
5      Sections 219 and 223(c). Maximum sentence is one year’s imprisonment.
6      Sections 219 and 223(b). Maximum sentence is seven years’ imprisonment.
7      Summary Offences Act 1981, s 9. Maximum sentence is six months’ imprisonment, or a fine not exceeding $4,000.
8      Sentencing Act 2002. s 70A(a). Maximum sentence is six months’ imprisonment, or a fine not exceeding $1,500.
9      Criminal Procedure Act 2011, s 250(3).
10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
11     At [33], [35].

excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.12

Offending

[7] Ms Andrews’ offending is spread across numerous discrete occasions in May, June and July this year. Judge Cocurullo properly characterised the offending as “carried out in an unabating fashion”.13

[8] The three burglary charges, which the Judge adopted as the lead offences, relate to three separate incidents:

(a)on 13 June, Ms Andrews and a co-offender entered the manager’s office behind the service deck at a Harvey…

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 Andrews v The Queen

Details

AGLC: Andrews v The Queen [2018] NZHC 3216
Case: [2018] NZHC 3216
Decision Date: 7 December 2018

CaseChat Overview and Summary

Rawinia Andrews appeals her two-year imprisonment sentence, imposed by Judge Cocurullo in the District Court at Hamilton on 24 September 2018, following her conviction on 14 charges. The charges include various counts of burglary, theft, dishonest use of a document, common assault, and breach of intensive supervision. Andrews' counsel, Gerard Walsh, argues the sentence is manifestly excessive, asserting that the Judge erred by adopting an excessive starting point and applying excessive uplifts for the balance of the offending and previous convictions.

The High Court must determine whether the sentence is manifestly excessive and, if so, impose a different sentence. The court must consider whether the sentence falls within the range that can be justified by accepted sentencing principles. The court found that while the starting point for the burglary charges was appropriate, the uplifts for the remaining charges and previous convictions were excessive. The court considered a starting point of eight months appropriate, but accepted the Crown's argument that the value of the stolen items should be reflected in the uplifts. The court also found that the uplifts for the remaining charges and previous convictions were excessive, resulting in a notional sentence of 22 months' imprisonment. After applying the appropriate discounts, the court determined the appropriate sentence to be 16 months' imprisonment.

The court also considered whether home detention would be a more appropriate sentence but found that imprisonment remained the least restrictive option in the circumstances. The court allowed the appeal, quashed the original sentence, and imposed a reduced sentence of 16 months' imprisonment.

Orders