Berry v Police - [2014] NZHC 2852

NOTE: PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-443-026 [2014] NZHC 2852

BETWEEN
LEWIS JOEL PAI BERRY

Applicant/Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
20 October 2014 (Further material received on 13 November

2014)

Appearances:

J Woodcock for the Applicant/Appellant
B Sweetman for the Respondent

Judgment:

17 November 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on 17 November 2014 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
J Woodcock, Barrister, New Plymouth
B Sweetman, Crown Solicitors, New Plymouth

BERRY v NEW ZEALAND POLICE [2014] NZHC 2852 [17 November 2014]

[1] Following Mr Berry’s plea of guilty to one charge under s 134 of the Crimes Act 1961 (sexual connection with a young person) he was sentenced by Judge Roberts to two years’ and three months’ imprisonment. He appealed that sentence and his appeal had been scheduled to be heard on 15 December 2014.

[2] Mr Berry had also applied for bail pending the hearing of the appeal but this was refused by Judge Roberts. Mr Berry also appealed that decision and that was the appeal that was scheduled to be heard by me.

[3] Because the grounds advanced in support of the bail appeal essentially went to the merits of the learned Judge’s sentencing decision, I indicated to counsel that I was prepared to hear the sentence appeal instead. Counsel were both agreeable to that course.

[4] After hearing submissions from counsel in relation to the sentence appeal on the morning of 20 October I adjourned to enable inquiries to be made as to:

(a) whether there were steps that could readily be taken to address the deficiencies that had been identified in relation to the suitability for home detention purposes of his mother's address (the difficulties were the fact that it is not connected to the national grid due to its reliance on solar power); and

(b)whether Mr Berry would be able to continue in his employment in the event that he was sentenced to home detention.

[5] When the hearing resumed that afternoon, Ms Woodcock advised that, as to (a), such steps could be taken but that four weeks was needed in order for the consistency of the signal to be properly tested and, as to (b), Mr Berry would be able to continue to work, provided he was under supervision at all times.

[6] In light of that advice, and of the favourable view I have formed about the strength of the grounds of appeal, I formed the view that the interests of justice favoured the grant of bail to Mr Berry pending further investigation into the

suitability of the proposed home detention address and the determination of his appeal. The grant of bail expires today, unless then extended by the Court.

[7] This judgment deals with the merits of the sentence appeal.

Facts…

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 Berry v Police

Details

AGLC: Berry v Police [2014] NZHC 2852
Case: [2014] NZHC 2852
Decision Date: 17 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Ellis J heard the case of Berry v Police, where the applicant, Lewis Joel Pai Berry, appealed against his sentence and the refusal of bail pending that appeal. The court was required to determine whether the sentence imposed by the District Court was erroneous and, if so, what appropriate sentence should be imposed instead. The appeal against the refusal of bail was rendered moot when the court decided to hear the appeal against sentence instead. After hearing arguments and considering the facts of the case, the court found that the starting point and the sentence imposed by the District Court contained several errors. These included misinterpretation of the facts, incorrect application of aggravating factors, and failure to consider the applicant's rehabilitative prospects. As a result, the appeal against sentence was allowed, and the sentence of two years and three months' imprisonment was quashed. In its place, a sentence of nine months' home detention was substituted, with specific conditions to be followed during the period of home detention.

The final orders of the court were as follows: the sentence of two years and three months' imprisonment was quashed, and a sentence of nine months' home detention was substituted. The home detention address was specified as 29 Takaroa Street, Urenui, with specific conditions to be followed during the period of home detention, such as abstaining from alcohol and non-prescription drugs, attending psychological assessments and treatment, engaging in approved vocational training or employment, and refraining from contact with the victim or any person under 16 years of age without proper supervision. The court also reserved the right to grant further assistance if needed in approving the applicant's continued employment.

Orders