Carr v Police - [2015] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000108

CIV-2015-404-000882 [2015] NZHC 865

BETWEEN JOHN ROBERT CARR Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 April 2015

Counsel:

M Pitch for Applicant
LJ Clancy for Respondent

Judgment:

29 April 2015

JUDGMENT OF ASHER J

Solicitors/Counsel: M Pitch, Auckland.
Meredith Connell, Auckland.

CARR v NZ POLICE [2015] NZHC 865 [29 April 2015]

[1] For reasons that I will outline, I am treating this is an appeal against a decision of Judge A J Fitzgerald on 22 April 2015 sentencing the applicant John Robert Carr to three months’ imprisonment on a charge of assault, that sentence to be concurrent with the 15 month sentence of imprisonment imposed on charges of breach of bail, driving with excess blood alcohol, driving while disqualified and injuring with intent on 10 October 2014.

Background

[2] On 10 October 2014 Mr Carr came up for sentence on the five charges that I have outlined. He had entered a guilty plea on the driving, injuring with intent and breach of bail charges, but a not guilty plea on the assault charge (which at that stage was an assault with intent to injure charge). Therefore he was sentenced on 10
October 2014 to the driving charges, the injuring with intent charge and the bail charge, but not the assault with intent to injure charge.

[3] Mr Carr was sentenced to 15 months’ imprisonment. He was convicted and discharged on the bail count, sentenced to six months on driving with excess blood alcohol, two months on driving while disqualified and one year and three months on the injuring with intent charge, with the injuring with intent being the lead charge and the other sentences being concurrent.

[4] In March 2015 the Police agreed to reduce the assault with intent to injure charge to common assault, and on 4 March 2015 Mr Carr pleaded guilty to that charge of common assault. The charge related to a domestic incident where an argument broke out between Mr Carr and his partner. It appears there was some physical give and take which involved him grabbing his partner by the throat, applying pressure to her neck and punching her so that she suffered some contusions to her eye and nose, swelling to the back of her head and lower lip, and general tenderness in her body.

[5] At the time of the guilty plea being entered Judge Fitzgerald gave a sentence indication indicating a sentence of three months’ imprisonment. I do not have a copy

of what he said in the indication, but in his sentencing notes of 22 April 2015 he recorded: 1

… [t]he indication was also on the basis that the three months’ imprisonment would run at the same time as the sentence of imprisonment you were serving for other offending.

[6] When the Judge sentenced Mr Carr on 22 April 2015 he summarised the facts and noted Mr Carr’s history of offending and also noted the plea of guilty and…

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 Carr v Police

Details

AGLC: Carr v Police [2015] NZHC 865
Case: [2015] NZHC 865
Decision Date: 29 April 2015

CaseChat Overview and Summary

The case of Carr v Police involved the applicant, John Robert Carr, who was seeking relief from a sentence imposed on him by Judge A J Fitzgerald. The respondent, New Zealand Police, opposed the application. The dispute centred on the sentencing of Carr for a domestic incident that resulted in a charge of common assault. The High Court treated the application as an appeal against the sentence imposed by Judge Fitzgerald. The legal issues involved the interpretation of the Sentencing Act 2002, the Parole Act 2002 and the Criminal Procedure Act 2011. The court considered whether the Judge's sentence indication was binding, and if there had been a procedural unfairness to Carr. The court concluded that there had been a significant procedural unfairness to Carr due to an error by the court. The court quashed the sentence imposed and substituted a sentence of conviction and discharge, which meant that Carr was released from custody immediately.

Orders