Cash v Police - [2016] NZHC 2748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-334 [2016] NZHC 2748

BETWEEN
TEMANA CASH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 November 2016

Appearances:

V Pomeroy for Appellant
A McConachy for Crown

Judgment:

16 November 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 November 2016 at 4.15 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Cash v New Zealand Police [2016] NZHC 2748 [16 November 2016]

Summary

[1] Temana Cash pleaded guilty to one charge of assault, one charge of wilful damage and two charges of behaving threateningly. The victim was his partner, who was pregnant with his child. Mr Cash appeared in the District Court at Waitakere on
5 October 2016 and was sentenced by Judge K Glubb to four months’ home detention and 80 hours’ community work.1 He appeals on the basis that the sentence was manifestly excessive.

Background

[2] For approximately three years, Mr Cash and the victim have been in what, by all accounts, appears to have been a volatile relationship; they have known each other for longer than that. In or around January of this year, the couple separated.

[3] On 8 March 2016, the victim visited the Manurewa Police Station and reported a domestic altercation with Mr Cash. A police safety order was issued to Mr Cash. Later that day, however, the police were advised by the victim’s mother that Mr Cash was dragging the victim by the arm down the street. The police officers who responded to the incident reported that the victim was attempting to resist Mr Cash but was being pulled along against her will. When he saw the police, Mr Cash ran away. He was charged with assault, an offence which carries a
maximum sentence of one year’s imprisonment.2

[4] On 17 May 2016, the victim obtained a protection order against Mr Cash on the basis that she had been receiving unwanted and threatening messages from him since their separation in January. Despite that order, on 20 May 2016 Mr Cash sent more than 50 text messages and called the victim more than 50 times within a six hour period. The content of the text messages was particularly violent and included threats to drive a car into the victim’s house; to send gang members after the victim; and to kick the victim in the stomach so that she would miscarry. This led to one of
the charges of behaving threateningly.3

1      New Zealand Police v Cash [2016] NZDC 19845.
2      Crimes Act 1961, s 196.
3      Summary Offences Act 1981, 21(1)(a); maximum sentence of 3 months’ imprisonment or a fine

[5] A few weeks later, on 8 June 2016, Mr Cash again contacted the victim by phone. He stated that he would be visiting her address with other men, that he would kidnap her and “kick [her] in the stomach to get rid of the baby.” Shortly thereafter he arrived at an address where the victim was staying and attempted…

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 Cash v Police

Details

AGLC: Cash v Police [2016] NZHC 2748
Case: [2016] NZHC 2748
Decision Date: 16 November 2016

CaseChat Overview and Summary

In Cash v Police, the appellant, Temana Cash, pleaded guilty to assault, wilful damage, and two charges of behaving threateningly. Cash appealed the District Court sentence of four months' home detention and 80 hours of community work, arguing that it was manifestly excessive. The central legal issues were whether the sentence was disproportionately high and whether the District Court had erred in its assessment of the overall gravity of the offending and relevant sentencing factors. The court examined the starting point, uplift for prior offending, and discounts for youth and guilty pleas. The court concluded that the District Court erred in adopting a starting point of 12 months' imprisonment and overstated the seriousness of the offending. The appropriate starting point for the offences, considering the maximum penalties, was no more than two to three months' imprisonment. The uplift for prior offending and discounts for youth and guilty pleas resulted in a provisional sentence of two months' imprisonment. While the court agreed with the District Court that a non-custodial sentence was appropriate, it found that the sentence imposed was manifestly excessive. The court allowed the appeal, set aside the community work sentence, and varied the home detention sentence to 42 days, considering Cash had already served 41 days.

Orders