Brown v Police - [2017] NZHC 1846

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2017-416-9 [2017] NZHC 1846

BETWEEN
RAIHA MAKERE BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 August 2017

Counsel:

N H Wright for Appellant
M M Mitchell for Respondent

Judgment:

4 August 2017

JUDGMENT OF THOMAS J

Introduction

[1] Rahia Brown is 23 years old. She has three children aged 2, 3 and 6. She had sole care of them until being remanded in custody on 20 January 2017, when she was charged with some violent offending, whilst on bail for other offending. She then lost her tenancy of the house where she and her three children lived.

[2] Ms Brown was sentenced to 19 months’ imprisonment for a variety of charges at the District Court at Gisborne on 19 May 2017:1 burglary;2 obtaining by deception;3 dishonestly using a document (two representative charges);4
impersonating an officer;5 assault with a weapon;6 assault with intent to injure;7

1      Police v Brown [2017] NZDC 11643.
2      Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment.
3      Crimes Act 1961, s 240(1)(a) and (d), maximum penalty three months’ imprisonment.
4      Crimes Act 1961, s 228(a), maximum penalty seven years’ imprisonment.
5      Policing Act 2008, ss 48(10(a) and 48(4), maximum penalty four months’ imprisonment,
$15,000 fine.
6      Crimes Act 1961, s 202C, maximum penalty five years’ imprisonment.
7      Crimes Act 1961, s 193, maximum penalty three years’ imprisonment.

BROWN v NEW ZEALAND POLICE [2017] NZHC 1846 [4 August 2017]

common assault;8 and intimidation.9 She did not have a suitable address for home detention but was given leave to apply for a substituted sentence if one became available.

[3] Given Ms Brown’s circumstances, there is no prospect of her finding what would be considered a suitable address. She is serving her sentence in the Auckland Region Women’s Corrections Facility, seven and a half hours’ travel time away from her children.

[4] Ms Brown now appeals her sentence.

Facts

[5] On 9 August 2016 at about 9.15 pm, Ms Brown and a Mr Haenga approached the home of a 93 year old man who runs a business from his home, where he lives alone. Ms Brown entered the man’s house through a dog box and opened a ranch slider to the business portion of the building to let in Mr Haenga. The alarm went off and they fled, empty-handed, in Mr Haenga’s car. This incident gave rise to the burglary charge.

[6] They drove to another address which Mr Haenga had previously burgled. The occupant was another elderly man, with a mental impairment. At about
10.00 pm, Ms Brown knocked on the door, impersonated a police officer, and convinced the victim his previously burgled property would be returned to him on payment of $300. With Mr Haenga concealed in the back of the car, the victim accompanied Ms Brown to an ATM and withdrew $200, Ms Brown taking note of his PIN. They returned to his address and Ms Brown accompanied him inside. However, after seeing Mr…

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 Brown v Police

Details

AGLC: Brown v Police [2017] NZHC 1846
Case: [2017] NZHC 1846
Decision Date: 4 August 2017

CaseChat Overview and Summary

In the case of Brown v Police, the appellant, Ms. Brown, appealed her 19-month imprisonment sentence imposed by the District Court. The appeal was heard in the High Court of New Zealand, Gisborne Registry. Ms. Brown's appeal focused on the sentence's severity due to the lack of a suitable address for home detention and the impact of her imprisonment on her three young children. The court considered the appellant's reduced culpability, the nature of the offending, and the potential for rehabilitation.

The court found that while the starting point for the burglary charge might have been out of range, the total sentence was still within the appropriate sentencing range. However, the court concluded that the appellant's particular circumstances made the sentence disproportionately severe. Ms. Brown's sole care for her three young children, the significant impact of her imprisonment on them, and the lack of a suitable address for home detention all contributed to the court's decision.

The appeal was allowed, and the sentence was reduced to 14 months' imprisonment, with standard and special release conditions imposed. The special conditions require Ms. Brown to attend alcohol and drug treatment and anger management counselling.

Orders