Ashby v Police - [2021] NZHC 1306

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-13

[2021] NZHC 1306

BETWEEN
TYSON RAYMOND PATRICK ASHBY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via AVL): 27 May 2021

Appearances:

S J Parsons for the Appellant E Pairman for the Respondent

Judgment:

4 June 2021

JUDGMENT OF GAULT J

Solicitors:
Mr S J Parsons, Cooper Cross Ltd, Palmerston North
Ms E Pairman, Ben Vanderkolk & Associates, Office of the Crown Solicitor, Palmerston North

ASHBY v POLICE [2021] NZHC 1306 [4 June 2021]

Introduction

[1] Mr Ashby appeals against an overall sentence of two years and nine months’ imprisonment imposed by Judge B R Northwood in the Palmerston North District Court on 12 March 2021,1 following convictions on the following charges:

(a)two charges of assault on person in family relationship;2

(b)two charges of possession of an offensive weapon;3

(c)two charges of wilful damage;4

(d)three charges of driving while disqualified;5

(e)two charges of theft of property (under $500);6

(f)four charges of operating a motor vehicle recklessly;7

(g)one charge of threatening language;8

(h)one charge of driver gave false information as to own identity;9

(i)one charge of failing to stop when followed by red/blue flashing lights;10 and

(j)one charge of breach of conditions of intensive supervision.11

1      New Zealand Police v Ashby [2021] NZDC 4471 (sentencing notes of Judge B Northwood).
2      Crimes Act 1961, s 194A: maximum penalty 2 years’ imprisonment.
3      Crimes Act 1961, s 202A(4)(b): maximum penalty 2 years’ imprisonment; and Crimes Act 1961, s 202(4)(a): maximum penalty 3 years’ imprisonment.
4      Summary Offences Act 1981, s 11(1)(a): maximum penalty 3 months’ imprisonment, $2,000 fine.
5      Land Transport Act 1998, ss 32(1)(a) and 32(4): maximum penalty 2 years’ imprisonment,
$6,000 fine.
6      Crimes Act 1961, ss 219 and 223(d): maximum penalty 3 months’ imprisonment.
7      Land Transport Act 1998, s 35(1)(a): maximum penalty 3 months’ imprisonment, $4,500 fine.
8      Summary Offences Act 1981, s 21(1)(a): maximum penalty 3 months’ imprisonment.
9      Land Transport Act 1998, ss 52A(1)(c), 52A(2) and 114(3)(b): maximum penalty $10,000 fine.
10     Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2): maximum penalty $10,000 fine.
11     Sentencing Act 2002, s 70A(a): maximum penalty 6 months’ imprisonment or fine not exceeding
$1,500.

[2] Mr Ashby appeals on the narrow basis that the Judge erred in failing to apply a discount for the personal factors identified in a s 27 cultural report.

The offending

29 March 2020 offending

[3] On 29 March 2020, Mr Ashby, his partner of two and a half years (the victim) and Mr Ashby’s three children were at their home address in Palmerston North. Mr Ashby located the victim’s diary and became angry when he found she had been writing things about him. He ripped pages from the diary and set them on fire and yelled at the victim. Mr Ashby charged down the hallway towards the victim and jabbed her in the face with his right fist, yelling, “Should I just kick your…

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 Ashby v Police

Details

AGLC: Ashby v Police [2021] NZHC 1306
Case: [2021] NZHC 1306
Decision Date: 4 June 2021

CaseChat Overview and Summary

Tyson Raymond Patrick Ashby appeals against the sentence of two years and nine months’ imprisonment imposed by Judge B R Northwood in the Palmerston North District Court on 12 March 2021. The sentence followed Mr Ashby’s convictions on multiple charges, including assault on a person in a family relationship, possession of an offensive weapon, wilful damage, driving while disqualified, theft, reckless driving, threatening language, providing false information to a police officer, failing to stop when followed by red/blue flashing lights, and breach of conditions of intensive supervision. Mr Ashby appeals on the basis that the Judge erred in failing to apply a discount for the personal factors identified in a s 27 cultural report. The offending included multiple incidents of violence against his partner, dangerous driving, theft, and other offences. The District Court Judge referred to the cultural report but declined to apply a discount for the personal factors, noting the seriousness of the offending and the need to denounce Mr Ashby’s violence and dangerous driving. The High Court found that the Judge’s failure to apply a discount for the personal mitigating factors referred to in the s 27 cultural report led to a manifestly excessive end sentence. A discount of 10 to 15 per cent would have been appropriate, resulting in an overall end sentence of two years and three months’ imprisonment. The appeal against sentence is allowed, and the sentences are varied accordingly.

Orders