[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…

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 The the King

Details

AGLC: Birch v The the King [2022] NZHC 2448
Case: [2022] NZHC 2448
Decision Date: 23 September 2022

CaseChat Overview and Summary

The case of Birch v The King concerns an appeal by Matthew Birch against a sentence of 16 months’ imprisonment imposed by Judge Brandts-Giesen for charges of assault on a person in a family relationship, breaching a protection order, and attempting to pervert the course of justice. The District Court found that Birch had committed an "ugly assault" on the victim followed by a protection order breach and an attempt to pervert the course of justice. The court took the attempt to pervert the course of justice as the lead offence, noting it went to the very heart of the prosecutorial process. The Judge adopted a starting point of 18 months’ imprisonment, uplifted the sentence by three months for the protection order breaches and by three months for Birch’s previous convictions. The Judge granted a full 25 per cent guilty plea discount and five per cent credit for remorse and participation in restorative justice, resulting in an end sentence of 16 months’ imprisonment. The Judge declined to commute that sentence to home detention.

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.

Orders