Boyd v Police - [2023] NZHC 2363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000326

[2023] NZHC 2363

BETWEEN
BRANDON RALPH BOYD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 August 2023

Appearances:

H Barakat and M J English for Appellant M Nash for Respondent

Judgment:

28 August 2023

ORAL JUDGMENT OF VENNING J

Appeal against sentence

Solicitors: Crown Solicitor, Auckland
Public Defence Service, Waitakere

BOYD v NEW ZEALAND POLICE [2023] NZHC 2363 [28 August 2023]

[1] Brandon Boyd pleaded guilty to charges of driving while disqualified (x2); driving in a dangerous manner (x2); resisting Police; assault on a person in a family relationship; and intentional damage. On 20 June 2023 Judge J M Jelaš sentenced Mr Boyd to 16 months’ intensive supervision and 100 hours’ community work.1 She also disqualified him from driving for one year and one day. The Judge remitted $4,000 of outstanding fines (the initial sentence).

[2] Later that same day Mr Boyd was recalled before the Judge as it had emerged that he was being held in custody on new allegations of family harm offending against the same complainant as the assault charge.

[3] The Judge considered the earlier sentencing hearing had proceeded in error because, as Mr Boyd was in custody the community based sentence was wrongly imposed. The Judge relied on s 180 of the Criminal Procedure Act 2011 (CPA) to re- sentence Mr Boyd. Judge Jelaš sentenced Mr Boyd to seven months’ imprisonment.2 She again disqualified him for one year and one day and confirmed the remission of the outstanding fines of $4,000 (the replacement sentence).

[4]Mr Boyd appeals against the replacement sentence.

Grounds of appeal

[5] In support of the appeal on behalf of Mr Boyd, Ms Barakat submits the sentence of imprisonment was manifestly excessive and, in particular:

(a)the Judge incorrectly found she could not sentence Mr Boyd to intensive supervision and community work while he was in custody on other charges; and

(b)the least restrictive sentence in the appropriate circumstances was not applied as leave to apply for home detention under s 80I of the Sentencing Act 2002 was not considered.

1 New Zealand Police v Boyd [2023] NZDC 13180.
2 New Zealand Police v Boyd [2023] NZDC 12544.

The District Court decision

[6] The Judge adopted a starting point on the assault charge of six months’ imprisonment. She considered an uplift for the driving while disqualified charges of four months’ imprisonment and a further one month for the additional driving offending to be appropriate which led to a nominal starting point of sentence of 11 months’ imprisonment. The Judge then applied a 30 per cent credit for Mr Boyd’s guilty pleas, his completion of the Right Track Programme and substantial completion of the Man Alive Programme. She also took into account the time Mr Boyd had spent on electronically monitored bail.

[7] Ultimately the Judge imposed a sentence of six months’, two weeks’ imprisonment on the charge of assault on a person in 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 Boyd v Police

Details

AGLC: Boyd v Police [2023] NZHC 2363
Case: [2023] NZHC 2363
Decision Date: 28 August 2023

CaseChat Overview and Summary

The case of Boyd v Police involved an appeal against a sentence imposed by Judge J M Jelaš of the Auckland District Court. Brandon Ralph Boyd was sentenced to 16 months’ intensive supervision and 100 hours’ community work, along with a one-year-and-one-day driving disqualification and remission of $4,000 of outstanding fines. This sentence was later deemed erroneous as Boyd was in custody on new allegations of family harm offending at the time of sentencing. Consequently, the Judge re-sentenced Boyd to seven months’ imprisonment, again disqualified him from driving for one year and one day, and remitted the outstanding fines of $4,000. Boyd appealed the replacement sentence, arguing that the imprisonment term was manifestly excessive, and that the Judge incorrectly found she could not sentence him to intensive supervision and community work while he was in custody on other charges. Additionally, Boyd’s counsel argued that the least restrictive sentence was not applied as leave to apply for home detention under s 80I of the Sentencing Act 2002 was not considered.

The appeal centred on whether the Judge was correct to invoke s 180 of the Criminal Procedure Act 2011, which allows a court to impose a new sentence if the original sentence could not by law be imposed. The Police argued that the original sentence was erroneous because it could not be practically served by Boyd due to his custodial status, thus rendering it impossible for him to comply with the mandatory condition of reporting to a probation officer within 72 hours. However, the High Court found that the wording of s 180, CPA was clear and its meaning more constrained than the Police's approach. The court held that s 180 only applies if there is an express statutory provision preventing the imposition of a non-custodial sentence, which was not the case here. Therefore, the Judge did not have the jurisdiction to invoke s 180, and the replacement sentence imposed must be set aside.

The appeal was allowed, and the sentence of imprisonment imposed by Judge Jelaš was quashed. Given that Boyd has effectively served most of, if not all of, the sentence imposed, the High Court remitted the issue of sentencing to the District Court for that Court to impose an appropriate sentence in the circumstances that can be presented on behalf of Boyd and the Police.

Orders