Beatty v Police - [2020] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-407

[2020] NZHC 3026

UNDER The Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

TONY BEATTY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 November 2020

Appearances:

A Comeskey for the Appellant B Archibald for the Respondent

Judgment:

16 November 2020

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Mr A Comeskey, Barrister, Auckland
Ms B Archibald and Ms E Kerr, Meredith Connell, Office of the Crown Solicitor, Auckland

BEATTY v POLICE [2020] NZHC 3026 [16 November 2020]

[1] Mr Beatty was convicted of indecent assault following a Judge alone trial in the District Court on 30 April 2019.1

[2] He had approached the victim – who was unknown to him – in a charity shop and pulled her into a close hug. Mr Beatty then repeatedly asked her to “come close to [him] with [her] front” and groped the victim’s breast. After he let the victim go, he told her she had beautiful hair, jangled his car keys at her and offered her a lift.

[3]At the time of the offending, Mr Beatty was 63 years old.

[4] On 27 August 2020 Mr Beatty was sentenced to 12 months’ imprisonment.2 Judge L Tremewan in the District Court declined to grant Mr Beatty leave to apply for his sentence to be commuted to a sentence of home detention pursuant to s 80I of the Sentencing Act 2002.

[5] On 2 November 2020, Paul Davison J heard Mr Beatty’s appeal against sentence.3 Davison J granted leave for new evidence to be adduced on appeal. That evidence discussed Mr Beatty’s medical conditions, including some of his cognitive difficulties following a stroke. In addition, Mr Beatty has mental health issues which require ongoing treatment. Ultimately, Davison J considered the appellant’s limited criminal history, supportive family, medical needs (which were not canvassed in any detail before the District Court Judge) and his compliance with bail meant that a sentence of home detention was the least restrictive sentence available in the circumstances.

[6]Davison J made the following orders:

[38] The appeal is allowed, and pursuant to s 80I of the Sentencing Act 2002 I make an order granting the appellant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.

[39] I direct the Registrar to request the Department of Corrections to prepare a report regarding the suitability of the appellant’s residence in

1      Police v Beatty [2019] NZDC 14146.
2      Police v Beatty [2019] NZDC 17323.
3      Beatty v Police [2020] NZHC 2894.

Henderson for the purposes of him serving a sentence of home detention at that address.

[40] I further direct the registrar to list this appeal for a disposition hearing at 3.45 pm on 16 November 2020, by which date the Department of Corrections suitability report regarding the appellant’s address is expected to be available and, subject to the report…

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 Beatty v Police

Details

AGLC: Beatty v Police [2020] NZHC 3026
Case: [2020] NZHC 3026
Decision Date: 16 November 2020

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Tony Beatty against his sentence of imprisonment for indecent assault. The matter arose after Beatty was convicted in a Judge alone trial in the District Court. Beatty had approached a stranger in a charity shop, hugged her tightly, groped her breast and propositioned her. Beatty was sentenced to 12 months’ imprisonment. He appealed to the High Court, which granted leave for new evidence to be adduced on appeal. This evidence discussed Beatty’s medical conditions, including some of his cognitive difficulties following a stroke. In addition, Beatty has mental health issues which require ongoing treatment. The High Court considered the appellant’s limited criminal history, supportive family, medical needs and his compliance with bail meant that a sentence of home detention was the least restrictive sentence available in the circumstances.

The court was required to determine whether Beatty’s sentence of imprisonment should be commuted to a sentence of home detention, and if so, what that sentence should be. The court noted that the usual practice when leave is granted under s 80I is for the application to be made in the District Court. However, the court considered that in the unusual circumstances of this case, it was not in the interests of justice to defer substituting the sentence further by requiring Beatty to make an application in the District Court given that he had already spent nearly three months in prison. The court also considered that a sentence of four-and-a-half months’ home detention was appropriate, taking into account the unserved portion of the sentence of imprisonment.

The appeal was allowed, the sentence of imprisonment was cancelled, and a sentence of four-and-a-half months’ home detention was imposed on the conditions stated in Corrections’ 13 November 2020 report. The court considered that Beatty should have his sentence of imprisonment substituted by one of home detention, given his medical needs and the support of his family. The court also considered that it was not in the interests of justice to defer substituting the sentence further by requiring Beatty to make an application in the District Court given that he had already spent nearly three months in prison. The court concluded that a sentence of four-and-a-half months’ home detention was appropriate, taking into account the unserved portion of the sentence of imprisonment.

Orders