Asres v Police - [2019] NZHC 2760

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-441

[2019] NZHC 2760

BETWEEN
MENASEA ASRES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 October 2019

Appearances:

G Burns for the Appellant J Kang for the Respondent

Judgment:

29 October 2019

ORAL JUDGMENT OF GAULT J

Solicitors:
Mr G Burns, Barrister, Auckland
Mr J Kang, Meredith Connell, Office of the Crown Solicitor, Auckland

ASRES v POLICE [2019] NZHC 2760 [29 October 2019]

[1] The appellant was sentenced to nine months’ imprisonment on 23 September 2019 by Judge R G Ronayne in the Auckland District Court after pleading to various dishonesty related offences.1

[2] He appeals his sentence on the basis the Judge double counted a factor leading to a manifestly excessive sentence. Mr Burns, for the appellant, submits the sentence should have been six to seven months’ imprisonment. The Crown submits the sentence was very much within the available range.

Facts

[3] On 21 January 2019 the appellant came into possession of a stolen debit card and used it to purchase goods totalling $211.10. This founded the following charges:

(a)receiving (under $500);2 and

(b)dishonestly using a document.3

[4] On 16 June 2019 the appellant stole two laptops from a study lab at Unitec University, valued in total at $2,600. This founds two charges of theft (over $1,000).4

[5] On 4 July 2019 the appellant met an acquaintance, borrowed his phone, left and did not return it, founding a charge of theft ($500 to $1,000).5

[6] On 26 June 2019 the appellant failed to report to Community Corrections, as required by a previous sentence of intensive supervision, founding a charge of breaches condition of intensive supervision.6

1      Police v Asres [2019] NZDC 18958.
2      Sections 246(1) and 247(c) of the Crimes Act 1961, carrying a maximum penalty of three months’ imprisonment.
3      Section 228(1)(b), carrying a maximum penalty of seven years’ imprisonment.
4      Sections 219 and 223(b), carrying a maximum penalty of seven years’ months’ imprisonment.
5      Sections 219 and 223(c), carrying a maximum penalty of three months’ imprisonment.
6      Section 70A(a) of the Sentencing Act 2002, carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $1,500.

District Court decision

[7] Judge Ronayne began by noting the appellant’s recent history of petty crime. The Judge said that sentences of supervision and intensive supervision had not worked in the past.

[8] The Judge took a starting point of nine months’ imprisonment for the three theft charges, added three months for the January dishonest use of a document and receiving charges, then added another three months for the breach of intensive supervision and bail breaches, coming to 15 months, but then deducted two months for totality.

[9] In terms of personal factors, the Judge uplifted by two months for the appellant’s history. The Judge declined to give a discount for youth (the appellant is 22), but did give two months for remorse, coming down to 13 months. The Judge then…

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 Asres v Police

Details

AGLC: Asres v Police [2019] NZHC 2760
Case: [2019] NZHC 2760
Decision Date: 29 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Menasea Asres appealed against his sentence for various dishonesty-related offences. He had been sentenced to nine months' imprisonment by Judge R G Ronayne in the Auckland District Court. The appellant argued that the sentence was manifestly excessive because the Judge had double counted factors leading to the sentence. Specifically, he claimed that the Judge had uplifted the sentence by three months for the January dishonesty charges and again for previous convictions, which amounted to double counting. The Crown argued that the sentence was within the available range and not manifestly excessive. The court considered the appeal against sentence, noting that the appellant must show that there has been an error in the imposition of the sentence and that a different sentence should be imposed. The court focused on the final sentence imposed rather than its component parts or how the ultimate sentence was reached. The court held that the sentence was in range for the offending and did not consider that the Judge had double counted. The appeal was dismissed.

This case highlights the court's approach to appeals against sentence, which is to focus on the final sentence imposed rather than its component parts or how the ultimate sentence was reached. The court will not intervene and substitute its own view if the sentence is within the range that can be properly justified by accepted sentencing principles. The court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle. In this case, the court found that the sentence was in range for the offending and did not consider that the Judge had double counted. Therefore, the appeal was dismissed.

Orders