Beattie v Police - [2017] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-60 [2017] NZHC 1626

BETWEEN
AMY LEE BEATTIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 July 2017

Appearances:

R Burnside for Appellant
M McClenaghan for Respondent

Judgment:

14 July 2017

JUDGMENT OF MANDER J

[1] The appellant, Ms Amy Beattie, appeals against an 11 month prison sentence imposed by Judge O’Driscoll on charges of unlawfully taking a motor vehicle, driving whilst suspended, being unlawfully in a closed yard, wilful damage and common assault. The ground on which Ms Beattie brings her appeal is that the sentence was manifestly excessive.

Background

[2] Under darkness in the early hours of 28 March this year, Ms Beattie entered a property. She unlocked a front gate before proceeding to the rear of the address by unlocking a second secured gate. She then approached the door of the house and turned a door handle. These circumstances gave rise to the charge of unlawfully being in an enclosed yard.

[3] The following day, 29 March, Ms Beattie, who is an unlicensed driver and forbidden to drive, unlawfully took her aunt’s motor vehicle. She had previously
been told that she was not permitted to borrow the vehicle.

BEATTIE v POLICE [2017] NZHC 1626 [14 July 2017]

[4] The final episode of offending occurred in April whilst Ms Beattie was on bail. She assaulted a person with whom she was in a relationship at the time. Ms Beattie was in an agitated and aggressive mood. She started a verbal argument with the victim. She struck an internal wall with the palm of her hand, causing damage. After the victim had gone outside to call the police, Ms Beattie pulled the victim by his hair, causing him to fall to the ground. She then proceeded to punch the victim in the head three times. As a result, he required medical treatment for a gash to the back of his head.

The appeal

[5] Ms Beattie abandoned part of her appeal which had been based upon the conduct of counsel who represented her in the District Court. Her complaint related to the way sentencing had occurred without the preparation of a pre-sentence report. Judge O’Driscoll proceeded to sentence Ms Beattie after she entered guilty pleas at a Case Review hearing. It was indicated to the Judge that Ms Beattie had waived the need for a pre-sentence report and had requested to be sentenced immediately. Judge O’Driscoll advised that he was prepared to do so on the basis he would impose a short-term sentence of imprisonment followed by release conditions.

[6] In the absence of an affidavit having been obtained from Ms Beattie and the opportunity afforded to the Crown to make inquiries of counsel who represented her before the District Court, there was no proper basis upon which that ground of appeal could be advanced. Ms Burnside, who appeared for Ms Beattie on her appeal, advised that she had taken instructions from her client and that this aspect of the…

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: [2017] NZHC 1626
Decision Date: 14 July 2017

CaseChat Overview and Summary

Amy Lee Beattie appeals against her 11-month prison sentence imposed by Judge O’Driscoll for charges including unlawfully taking a motor vehicle, driving whilst suspended, being unlawfully in a closed yard, wilful damage, and common assault. The appellant contends that the sentence was manifestly excessive. The appeal was heard on 13 July 2017, with R Burnside representing the appellant and M McClenaghan for the respondent. The court delivered its judgment on 14 July 2017.

The court was required to determine whether the sentence imposed by Judge O’Driscoll was manifestly excessive, and whether the starting point of 12 months imprisonment for the charge of unlawfully taking a motor vehicle was appropriate. The court also needed to consider whether the two-month imprisonment for the assault charge was correctly imposed without discounting for the guilty plea.

Mander J found that Judge O’Driscoll’s starting point of 12 months imprisonment for the charge of unlawfully taking a motor vehicle was appropriate, as it took into account the fact that the offending occurred while Ms Beattie was on bail and her extensive criminal history. The court determined that the two-month imprisonment for the assault charge was correctly imposed to reflect her overall criminal culpability, and that the appeal court’s focus should be on the correctness of the end sentence, not the process by which it was obtained. The appeal was dismissed, and the sentence upheld.

The final orders of the court are not explicitly stated in the text. However, based on the dismissal of the appeal, it can be inferred that the 11-month prison sentence imposed by Judge O’Driscoll remains in effect.

Orders