Birch v Police - [2017] NZHC 841

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000006
CRI-2017-412-000007

CRI-2017-412-000008 [2017] NZHC 841

BETWEEN
NICHOLAS BIRCH

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing: 27 April 2017

Appearances:

L A Andersen for Appellant
M J Grills for Crown

Judgment:

1 May 2017

JUDGMENT OF DUNNINGHAM J

[1] On 17 January 2017, the appellant was sentenced to one year and 11 months imprisonment1 on one charge of making a false statement,2 and three charges of driving while disqualified (third and subsequent).3 The appellant appeals the sentence on the basis that the Judge made an error in principle by:

(a) misstating the seriousness of the charge of making a false statement;

(b)imposing an end sentence that was manifestly excessive and where a lesser term of imprisonment, or a term of home detention, should have been imposed.

1      Police v Birch [2017] NZDC 661.
2      Crimes Act 1961, s 111.
3      Land Transport Act 1998, s 32(1)(a) and (4).

BIRCH v NEW ZEALAND POLICE [2017] NZHC 841 [1 May 2017]

Background facts

[2] While the appellant was in custody for various charges in 2014, he befriended another prisoner, Mr Dennis. Mr Dennis was on remand and due to be sentenced on
30 March 2015. The appellant was released on 11 March 2015. He proceeded to contact Mr Dennis’ lawyer and purported to be a representative of a successful businessman, horse trainer and philanthropist. He claimed not to have met Mr Dennis but that his employer saw great potential in Mr Dennis after his release from prison. He offered to speak at Mr Dennis’ sentencing.

[3] The sentencing was meant to be on 30 March 2015, but the appellant failed to appear, apparently due to the need to care for a sick horse. Mr Dennis’s counsel requested that the sentencing be put off until the next day. On 31 March, the appellant came to the District Court, where Mr Dennis was to be sentenced by District Court Judge Crosbie. Mr Dennis’ counsel outlined to the Judge the offers made by the appellant, which included the payment of a sum of over $25,000, in full reparation of the losses suffered by Mr Dennis’ victims. The appellant was standing in Court and heard this. Judge Crosbie allowed the appellant to address the Court. The appellant reiterated the fictitious offer to the Judge. The appellant added that his employer would employ Mr Dennis on his release and pay for correspondence courses while he was in prison.

[4] As a result of these false statements, the Judge gave Mr Dennis a six month discount reflecting the promise that full reparation would be paid and that he would have employment on release. Mr Dennis served his sentence and has been released from prison.

[5] The driving while disqualified charges occurred between August and October 2016 where the appellant was caught on three separate occasions. In respect of the second incident, which occurred on 11 October 2016, he initially provided a false name to police. Furthermore, two 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.

Continue reading Birch v Police

Details

AGLC: Birch v Police [2017] NZHC 841
Case: [2017] NZHC 841
Decision Date: 1 May 2017

CaseChat Overview and Summary

The appellant, Nicholas Birch, appeals against the sentence imposed by the District Court for making a false statement and driving while disqualified. The sentencing judge imposed a sentence of one year and 11 months imprisonment. The appellant argues that the starting point of 20 months for the false statement charge was too high and that the end sentence was manifestly excessive. The court examines the principles of sentencing and the reasoning of the sentencing judge to determine whether the sentence was properly justified.

The court finds that while the starting point for the false statement charge was on the high side, it was within an acceptable range given the seriousness of the offending. The court also finds that the uplift for the driving while disqualified charges was within range, and that the overall sentence reflected the seriousness of the offending and the key sentencing principles at play. The court notes that the false statement was made in the formality of a criminal sentencing process and had direct consequences for the outcome of the sentencing process. The court also notes that repeated offences of driving while disqualified are treated very seriously by the Courts.

The court holds that the appellant has not demonstrated that the end sentence was manifestly excessive. The appeal is dismissed, and the original sentence stands.

The final orders of the court are that the appeal is dismissed, and the sentence of one year and 11 months imprisonment, imposed by the District Court, is upheld.

Orders