Ashford v Police - [2012] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000357 [2012] NZHC 2758

BETWEEN CHANELE HINEMOA ASHFORD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 8 and 11 October 2012

Appearances: N A Smith for Appellant
H W Y Yiu for Respondent

Judgment: 11 October 2012

ORALJUDGMENT OF DUFFY J [re Re-sentencing]

Solicitors:
Liberty Law Barristers, PO Box 76500 Manukau 2241 for Appellant
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 for
Respondent

ASHFORD V NEW ZEALAND POLICE HC AK CRI-2011-404-000357 [11 October 2012]

[1] Following the entry of guilty pleas, the appellant, Chanele Hinemoa Ashford, was convicted in the District Court at Manukau of the following offences:

(a) Obtaining over $1,000 by deception; (b) Threatening behaviour/language;
(c) Five offences of failing to answer District Court bail; and

(d) Breach of community work.

[2] On 18 August 2011, Ms Ashford was sentenced to six months’ community detention on all charges, to be served concurrently. The Judge cancelled the existing sentence of community work and imposed a new sentence of 400 hours’ community work. He further ordered that Ms Ashford pay the sum of $9,838.56 in reparation at a rate of $40 per week. Ms Ashford appealed against those sentences on the ground that they were manifestly excessive.

[3] The appeal first came before this Court on 5 December 2011. At that time, it was accepted by counsel that the Judge had erred in his sentencing approach. I was invited to send the matter back to the District Court for Ms Ashford to be re- sentenced. Later, having considered the matter further, I issued a minute requesting counsel to outline the legal basis for this Court sending a sentencing back to the District Court. The respondent was able to address this issue, but counsel for Ms Ashford had difficulty, because Ms Ashford was funded by legal aid and the grant of aid was considered spent after the first appeal hearing in this Court. It then became necessary for a fresh application for legal aid to be made.

[4] As matters turned out, the time taken for the legal aid request to be processed and granted, as well as the availability of fixtures in this Court, meant that the matter could not be reconvened before me until 8 October 2012. Whilst this appears to be an unacceptable delay, it has actually worked to Ms Ashford’s advantage. Since the matter was last before me in December 2011, Ms Ashford has not re-offended. I

consider that this is a relevant factor to be taken into account when it comes to considering the sentence to impose on her. Everyone is now of the view that she should be re-sentenced in this Court; thus, there is no need to consider the legal question of whether this Court has authority to send a sentencing matter back to the District Court for re-sentencing.

[5] At the hearing on 8 October 2012, I heard argument from counsel on the appropriate sentence to impose. However, Ms Ashford was…

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: [2012] NZHC 2758
Decision Date: 11 October 2012

CaseChat Overview and Summary

The appellant, Chanele Hinemoa Ashford, appealed against the sentence imposed on her by the District Court. She was convicted of obtaining over $1,000 by deception, threatening behaviour/language, five offences of failing to answer District Court bail, and breach of community work. The District Court had sentenced her to six months’ community detention, to be served concurrently, and ordered her to pay a sum in reparation. Ms Ashford appealed on the ground that the sentences were manifestly excessive. The High Court was required to decide if the sentences were indeed excessive and, if so, what alternative sentences should be imposed. The court found that the sentences imposed in the District Court were manifestly excessive and quashed them. The High Court imposed a sentence of five and a half months’ community detention, with a curfew from 7.00 pm to 7.00 am, seven days a week, and confirmed the reparation order of $9,838.56 to be paid at $40 per week.

Orders