Brown v Police - [2017] NZHC 2837

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-30 [2017] NZHC 2837

BETWEEN
ASHLEY WILLIAM BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 November 2017

Appearances:

C J Tennet for the Appellant
C R Stuart for the Respondent

Judgment:

17 November 2017

JUDGMENT OF CULL J

[1] Mr Brown pleaded guilty to four charges: causing grievous bodily harm with intent to injure,1 dangerous driving,2 driving with excess breath alcohol,3 and breach of a community work order.4 On 8 September 2017, Judge Adeane sentenced
Mr Brown to 13 months’ imprisonment with six months of release conditions and disqualified him from driving for six months.5

[2] Mr Brown appeals his sentence on the basis that the starting point was too high, that the Judge should have warned Mr Brown he was considering a sentence of

1      Crimes Act 1961, s 188(2). Maximum penalty is seven years’ imprisonment.
2      Land Transport Act 1998, s 35(1)(b). Maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for six
months.
3      Section 56(1). Maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and                 disqualification from holding or obtaining a driver licence for six months.
4      Sentencing Act 2002, s 71(1)(f). Maximum penalty is three months’ imprisonment or a fine not exceeding $1,000.
5      New Zealand Police v Brown [2017] NZDC 20389.

BROWN v NEW ZEALAND POLICE [2017] NZHC 2837 [17 November 2017]

imprisonment, and that home detention, rather than imprisonment, was the appropriate sentencing outcome.

[3] The Crown opposes the appeal and argues the starting point was within the available range and the discounts applied were generous. Home detention was inappropriate in the circumstances because of the seriousness of the offending, the appellant’s failure to comply with community-based sentences, and his previous convictions.

Factual background

[4] The charge of causing grievous bodily harm with intent to injure arose from an incident on 11 June 2017. Mr Brown was at a family event with his then girlfriend, the victim, who was a very small and slightly built woman. Both Mr Brown and the victim were drinking during the evening and became moderately intoxicated.

[5] At about 11 pm, the victim’s older sister sent the victim to bed and Mr Brown followed soon after. Once in bed, Mr Brown began touching the victim in an intimate manner but the victim was not interested and told him she just wanted to go to sleep. Mr Brown became angry and shoved her on her shoulder saying “what bitch, what the fuck did you say?” The victim responded by slapping Mr Brown in the face and told him not to push her. Mr Brown put the victim’s arm up behind her back and she bit him to get him to let go. Mr Brown then punched the victim once in the face, striking her left eye.

[6] As a result of the punch, the victim suffered…

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 2837
Case: [2017] NZHC 2837
Decision Date: 17 November 2017

CaseChat Overview and Summary

In this case, the appellant, Ashley William Brown, pleaded guilty to charges of causing grievous bodily harm with intent to injure, dangerous driving, driving with excess breath alcohol, and breach of a community work order. The District Court judge sentenced Mr Brown to 13 months’ imprisonment with six months of release conditions and disqualified him from driving for six months. The appellant appealed against his sentence, arguing that the starting point was too high, the judge should have warned him that a sentence of imprisonment was being considered, and that home detention, rather than imprisonment, was the appropriate sentencing outcome. The Crown opposed the appeal, arguing that the starting point was within the available range and the discounts applied were generous. Home detention was inappropriate in the circumstances because of the seriousness of the offending, the appellant’s failure to comply with community-based sentences, and his previous convictions.

The court considered the starting point for sentencing and found that the District Court judge was correct in adopting a starting point of 18 months’ imprisonment, which was appropriate and, in the circumstances, lenient. The discount of five months given for Mr Brown’s guilty plea was also generous. The court found that there was no error on the part of the Judge in not warning Mr Brown that a sentence of imprisonment was being considered, as there was no obligation on the part of the Judge to do so. Finally, the court agreed with the District Court judge’s conclusion that home detention was not appropriate in this case due to the seriousness of the offending and the aggravating factors surrounding it. The appeal was dismissed.

The final orders of the court were that the appeal is dismissed.

Orders