Bourton v Police - [2016] NZHC 2883

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2016-476-10 [2016] NZHC 2883

BETWEEN
JOSHUA PHILLIP BOURTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 November 2016

Appearances:

D I Brown for Appellant
M A Beattie for Respondent

Judgment:

1 December 2016

JUDGMENT OF DUNNINGHAM J

Summary of appeal

[1] The appellant faced 13 charges relating variously to dishonesty and firearms offences, to which he pleaded guilty. The firearm offences involved the appellant’s unlawful possession of a $750 firearm which the appellant had stolen from an address at which he was living. In the main, the dishonesty charges related to the appellant obtaining funds by deception or by dishonest use of a document, either to secure hotel accommodation or to make credit card purchases. He pleaded guilty to all charges. On 27 July 2016, the appellant was sentenced by Judge Turner on all
charges to 20 months’ imprisonment.1

1 Police v Bourton [2016] NZDC 14111.

BOURTON v NEW ZEALAND POLICE [2016] NZHC 2883 [1 December 2016]

[2] At time of sentencing, there was no suitable address for an electronically-monitored sentence, and accordingly home detention was not recommended in the pre-sentence materials.2 That inevitably left a short sentence of imprisonment as the only viable option.

[3] Although the notice of appeal records the ground of appeal as the “sentence was manifestly excessive”, counsel for the appellant has conceded that the length of the end sentence of imprisonment was within range and not capable of serious challenge. The appeal is therefore based solely on the Judge’s alleged failure to grant the appellant leave to apply for a cancellation of his sentence of imprisonment and substitution for a sentence of home detention, under s 80I of the Sentencing Act
2002.

[4] It would appear that the appellant now has an address at which an electronically-monitored sentence could be served (although an updated PAC report confirming this has yet to be procured).

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 For relevant purposes, the appellant contends that the Judge has erred by failing to grant the appellant leave to apply for home detention.

The relevant law

[6] Whether the Judge has erred by failing to grant leave turns on the proper application of the home detention provisions in the Sentencing Act 2002, in particular s 80I:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1) This section applies if—

(a) a court has sentenced an offender to a short-term sentence of imprisonment; and

(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a…

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 Bourton v Police

Details

AGLC: Bourton v Police [2016] NZHC 2883
Case: [2016] NZHC 2883
Decision Date: 1 December 2016

CaseChat Overview and Summary

Joshua Phillip Bourton appeals against a sentence of imprisonment imposed by the District Court for dishonesty and firearms offences. The sentence was imposed by Judge Turner on 27 July 2016, and the appeal was heard on 29 November 2016. The sole ground of appeal is that the sentencing Judge failed to grant leave under s 80I of the Sentencing Act 2002 to apply for home detention if a suitable residence was found. The appeal was based on the contention that the sentence was manifestly excessive, but counsel conceded that the length of the sentence was within range and not capable of serious challenge. The appeal is therefore based solely on the alleged failure of the Judge to grant leave to apply for home detention. The appeal was determined under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. The Court must be satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.

The central issue was whether s 80I imposes a mandatory obligation on the Judge to grant leave to apply for home detention, provided the threshold criteria are met, and whether the Judge had overlooked the mandatory requirement. The Court concluded that the obligation to grant leave to apply for home detention is a mandatory requirement placed upon the sentencing Court and is not dependent on any application or submission by counsel for the defendant at the time of sentence. The Court held that the Judge had not turned his mind to whether s 80I applies and because that matter can be addressed afresh on appeal, it granted leave to apply for home detention. The sentence of imprisonment stands, but leave is granted under s 80I to apply to the Court of first instance for the cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence is available.

Orders