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 RespondentJudgment:
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…
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