Capstick v Police - [2020] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-7

[2020] NZHC 714

BETWEEN
DOUGLAS JOHN CAPSTICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Counsel:

J C Hannam for Appellant J E Bourke for Respondent

Judgment:

7 April 2020

JUDGMENT OF SIMON FRANCE J

[1] Mr Capstick appeals a sentence of two years and 11 months’ imprisonment imposed in relation to 11 charges which were committed on a total of five offending occasions.1 The 11 offences were:

(a)breach conditions of intensive supervision;2

(b)unlicensed driver failed to comply with prohibition;3

(c)failed to remain stopped for an enforcement officer;4

(d)drove a motor vehicle in a dangerous manner;5

1      New Zealand Police v Capstick [2019] NZDC 22472.
2      Sentencing Act 2002, s 70A(a); maximum penalty six months’ imprisonment or a $1,500 fine.
3      Land Transport Act 1998, s 52(1)(c); maximum penalty a $10,000 fine.
4      Section 52A(1)(b); maximum penalty a $10,000 fine.
5      Section 35(1)(b); maximum penalty three months’ imprisonment or a $4,500 fine.

CAPSTICK v NEW ZEALAND POLICE [2020] NZHC 714 [7 April 2020]

(e)obstruct/hinder police;6

(f)assault on person in family relationship;7

(g)under influence drink/drug causing injury;8

(h)under influence drink/drug causing injury;9

(i)failed to stop or ascertain injury;10

(j)possess offensive weapon;11 and

(k)unlicensed driver failed to comply with prohibition.12

[2] As noted, these charges stemmed from five events. The first was a breach of an intensive supervision order. The order was imposed on 8 August 2018, and the breach occurred on 6 March 2019.

[3] Charges (b) to (e) on the list come from an all-too-familiar driving event on 10 March. Mr Capstick was forbidden to drive but nonetheless did so. A police pursuit ensued during which there was excessive speed and the ignoring of road signs. The public were put at risk. The incident ended with Mr Capstick rolling the vehicle and running off.

[4] Charge (f), the assault, occurred on 11 March. The victim was visiting Mr Capstick so he could have time with their baby. The victim seems to have initiated an assault on Mr Capstick, who responded by “backhanding” her to the face.

6      Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.
7      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
8      Land Transport Act 1998, s 61(2); maximum penalty five years’ imprisonment or a $20,000 fine.
9      Section 61(2); maximum penalty five years’ imprisonment or a $20,000 fine.
10     Section 36(1)(c); maximum penalty five years’ imprisonment of a $20,000 fine.
11     Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
12     Land Transport Act 1998, s 52(1)(c); maximum penalty a $10,000 fine.

[5] The next incident, on 9 July, was another driving event that carried the lead sentence. Another vehicle was stopped at a T intersection, waiting to turn right. It was waiting for an approaching light truck to go past. Mr Capstick had been following the now stationary vehicle. Instead of waiting, he passed…

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 Capstick v Police

Details

AGLC: Capstick v Police [2020] NZHC 714
Case: [2020] NZHC 714
Decision Date: 7 April 2020

CaseChat Overview and Summary

The High Court was called upon to determine an appeal brought by Douglas John Capstick against the sentence imposed by the District Court. Capstick challenged the two-year-and-11-month imprisonment sentence for 11 charges committed on five separate occasions. The charges included dangerous driving, unlicensed driving, breaching an intensive supervision order, and assault. The District Court judge had taken the 9 July driving incident as the lead offence and applied a starting point of two years and nine months’ imprisonment, adding and deducting months for various factors, ultimately arriving at a sentence of two years and 11 months. Capstick's primary contention was that the sentence was manifestly excessive, focusing on the lead sentence and the six-month uplift for being on bail and subject to a sentence at the time of the offence.

The High Court found that the District Court judge had made two totality adjustments to the sentence, reducing its severity. The court held that the alleged errors contended for by Capstick would only have reduced the sentence before adjustment, not the end sentence, meaning the appeal could not succeed. The court also considered the six-month uplift to be appropriate given the circumstances of the offence and Capstick's history of similar offences. The High Court upheld the starting point for the lead offence, finding it to be in the correct area of the spectrum. The appeal was dismissed.

Orders