IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2022-425-14
[2022] NZHC 2448
BETWEEN MATTHEW JAMES BIRCH
Appellant
AND
THE KING
Respondent
Hearing: 19 September 2022 Appearances:
W N Dawkins for Appellant M Brownlie for Respondent
Judgment:
23 September 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 23 September 2022 at 1.15 pm
Registrar/Deputy Registrar Date:
BIRCH v THE KING [2022] NZHC 2448 [23 September 2022]
An appeal against sentence
[1] Matthew Birch was sentenced by Judge Brandts-Giesen1 to 16 months’ imprisonment on charges of assault on a person in a family relationship,2 breaching a protection order3 and attempting to pervert the course of justice.4 Mr Birch appeals the sentence. For Mr Birch, Mr Dawkins submits the appropriate calculation of a period of imprisonment was no longer than 13 months’ and that ought to have been commuted to a sentence of home detention.
The facts of Mr Birch’s offending
[2] Mr Birch (38 years old at the time) was in a relationship with the victim for approximately seven months. He resided with her and her children in Invercargill.
Assault
[3] In the evening of 26 October 2021, the victim was at her home address alone, and drinking some wine. An unknown woman sent her several messages and screenshots via Facebook Messenger stating Mr Birch had been trying to initiate a relationship with that woman. This upset the victim, so she phoned Mr Birch who was drinking with workmates. He denied the allegations and soon arrived home. She attempted to lock him outside, forgetting another door was unlocked. He entered the house reasonably intoxicated and they began to argue.
[4] The victim asked him why he left his phone in his vehicle and asked him to go to get it. He refused, saying she would lock him outside. She told him to leave multiple times. He eventually went outside to get his phone. She locked both doors so he could not get back inside. He found an open window and climbed through it. He took her phone and ran upstairs. She was scared and decided she should leave. She went upstairs to get her phone off Mr Birch before leaving but he refused. She returned downstairs with him following her and he somehow got hold of her car keys. She picked up the dog and carried him out to the car to get his lead. Mr Birch then
1 R v Birch [2022] NZDC 13294.
2 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
3 Family Violence Act 2019, ss 90(c) and 112(1)(a); maximum penalty three years’ imprisonment.
4 Crimes Act, s 117(a); maximum penalty seven years’ imprisonment.
approached her and “used force”. As a result, the victim fell on her right side onto the concrete driveway. Mr Birch and the dog also hit the ground with the dog yelping. The victim ran to the neighbour’s house and hid behind a power box. Mr Birch left in…
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CaseChat Overview and Summary
Birch’s counsel, Mr Dawkins, submitted that the starting point was excessive, the uplift for previous convictions was excessive, credit should have been given for time spent on bail with restrictive terms, and the Court erred in refusing to commute the sentence to home detention. The Crown, represented by Mr Brownlie, submitted that a stern sentence was warranted on the basis of denunciation and deterrence. The Court found that the starting point of 18 months’ imprisonment was well within range, and the 16 months’ sentence was clearly within range. The Court also found no error in the Judge’s refusal to give credit for the time Birch spent on bail with some restrictive aspects. In relation to the Judge’s refusal to commute the sentence of imprisonment to home detention, the Court found that the purposes of denunciation and deterrence made the sentence of imprisonment the appropriate sentence in Birch’s particular case.
The appeal was dismissed, and the original sentence of 16 months’ imprisonment was upheld.
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