Bom v Police - [2016] NZHC 2875

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000107

CRI-2016-409-000108 [2016] NZHC 2875

BETWEEN
SIMON JAMES BOM

Appellant

AND

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 29 November 2016

Appearances:

R M Buddicom for Appellant
E J Henderson for Crown

Judgment:

30 November 2016

JUDGMENT OF DUNNINGHAM J

[1] The appellant faced a number of charges in respect of which he was sentenced by Judge O’Driscoll on 28 September 2016.1 These included a re-sentencing for a charge of driving whilst disqualified,2 breach of community work, possession of materials related to methamphetamine use, breach of release conditions, and breach of bail.

[2] Of some consequence is the fact that the appellant was also before the Court on an unspecified “more serious charge”. The Judge was apparently in two minds about adjourning the present sentencing, but the appellant wished to be sentenced
that day.

1 Police v Bom [2016] NZDC 19186.
2 The appellant had initially been sentenced to community work, but had completed only
2.5 hours of that before an unopposed application to cancel and substitute was heard on
29 July 2016.

BOM v NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS [2016] NZHC 2875 [30 November 2016]

[3] In respect of the various charges, the appellant was sentenced to 16 months’

imprisonment.

[4] The appellant’s notice of appeal simply asserts that “there is an error in the sentence imposed on conviction and a different sentence should be imposed”. However, in submissions which have been filed in support of the appeal, five grounds of appeal are advanced to demonstrate that the end sentence was manifestly excessive:

(a) the starting point for the lead charge of driving whilst disqualified was too high;

(b)the starting point failed to take into account mitigating features of the offending for which 40 hours community service was initially imposed;

(c) the starting point failed to take into account that this was only the appellant’s third conviction for driving while disqualified and the time elapsed between convictions;

(d)the Judge failed to give any credit for guilty pleas on the cumulatively-sentenced charges; and

(e) the imposition of cumulative sentences made the sentence out of all proportion to the gravity of the offending.

Principles on Appeal

[5] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different
sentence should be imposed.3

3 Criminal Procedure Act 2011, ss 250(2) and 250(3).

[6] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood…

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 Bom v Police

Details

AGLC: Bom v Police [2016] NZHC 2875
Case: [2016] NZHC 2875
Decision Date: 30 November 2016

CaseChat Overview and Summary

Simon James Bom, the appellant, sought to appeal his sentence in respect of various charges against the respondent, the New Zealand Police Department of Corrections. The appellant was sentenced to 16 months' imprisonment for various charges, including driving whilst disqualified, possession of materials related to methamphetamine use, breach of community work, breach of release conditions, and breach of bail. The appellant's notice of appeal asserted that there was an error in the sentence imposed on conviction and that a different sentence should be imposed. The appellant advanced five grounds of appeal, including that the starting point for the lead charge of driving whilst disqualified was too high, that the starting point failed to take into account mitigating features of the offending, that the starting point failed to take into account the time elapsed between convictions, that the judge failed to give credit for guilty pleas on the cumulatively-sentenced charges, and that the imposition of cumulative sentences made the sentence out of all proportion to the gravity of the offending. The court had to decide whether the sentence imposed was manifestly excessive. The court found that the starting point for the lead charge of driving whilst disqualified was too high, and that the judge failed to apply a discount for the guilty plea to any charge but the lead charge. The court held that the appeal should be allowed, and quashed the sentences of imprisonment imposed in the District Court. The court imposed new sentences of imprisonment, to be served cumulatively.

Orders