Brown v Police - [2017] NZHC 1039

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-34

CRI-2017-409-35 [2017] NZHC 1039

BETWEEN
JACQUELINE GABRIELLE BROWN

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondent

Hearing: 26 April 2017

Appearances:

S Teki-Clark and P Johnson for Appellant
E J Henderson for Respondent

Judgment:

18 May 2017

JUDGMENT OF NICHOLAS DAVIDSON J

This appeal

[1] The appellant, Ms Brown, was sentenced to 21 months imprisonment in the

District Court on 23 February 2017, on the following charges:

· driving while disqualified (third or subsequent) x 3;

· giving false details;

· breach of community work;

· driving while disqualified (third or subsequent) –re-sentencing;

· possession of utensils –re-sentencing.

BROWN v NZ POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 1039 [18 May 2017]

[2] The grounds of appeal are that the sentence was manifestly excessive, and home detention ought to have been imposed.

Approach on appeal

[3] 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 a different sentence should be imposed.1

[4] 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 J said (citing Ripia v R2) in Larkin v Ministry of

Development:3

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,4

the Court of Appeal held that:5

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[6] A decision to grant home detention in lieu of a short sentence of imprisonment is discretionary. On appeal the Court’s primary focus is on the identification of any error, bearing in mind the discretionary nature of such
a decision.6 Such an error may be failure to take into account a relevant

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).
2      Ripia v R [2011] NZCA 101 at [15].
3      Larkin v Ministry of Development [2015] NZHC 680.
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 At [36].
6      Doolan v R [2011] NZCA 542 at [39].

consideration or taking into account an…

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 1039
Case: [2017] NZHC 1039
Decision Date: 18 May 2017

CaseChat Overview and Summary

The case of Brown v Police involved an appeal by Ms. Brown against her 21-month imprisonment sentence, imposed for multiple driving while disqualified charges, providing false details, breach of community work, and possession of utensils. The appellant argued that the sentence was manifestly excessive and that home detention should have been imposed instead. The central legal issues were whether the sentence was justified under the applicable sentencing principles and whether the judge had erred in refusing to impose home detention. The court assessed whether the sentence was manifestly excessive and if the judge had erred in not imposing home detention. The court concluded that the sentence was not manifestly excessive and that the judge did not err in refusing to impose home detention. The court found that the starting point and uplifts applied were within range and that the sentence imposed was appropriate given the seriousness of the offending and the appellant's history of non-compliance with community-based sentences and court orders. The court also found that there was insufficient information to determine whether home detention in a residential setting would be effective and that the appellant's lack of motivation towards rehabilitation and her persistent defiance of court-imposed sentences counted decisively against her. The appeal was dismissed, endorsing the approach and sentence imposed by the District Court.

Orders