Cassidy v Police - [2017] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-392

CRI-2017-404-393 [2017] NZHC 3079

BETWEEN
KAHU CASSIDY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 December 2017

Counsel:

A M M Ives for Appellant
D S Houghton for Respondent

Judgment:

12 December 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 December 2017 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

CASSIDY v POLICE [2017] NZHC 3079 [12 December 2017]

Solicitors/Counsel:
Annabel Ives (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

Introduction

[1] Mr Cassidy appeals the sentence of 20 months’ imprisonment handed down against him on 6 September 2017 by Judge J Jelas.1 The submission made on behalf of Mr Cassidy is that this sentence is manifestly excessive when the totality of his offending is appreciated.

[2] Mr Cassidy is a prolific offender. His criminal and traffic history amounts to

11 pages. Mr Cassidy is 31 years old. When he came before Judge Jelas for sentencing, her Honour noted it was relevant that the offending for which he was to be sentenced occurred only weeks into a sentence of 18 months’ supervision imposed on him on 1 February 2017. All of the offending was committed while he was subject to that sentence.

Background

[3] The charges fell into three categories. The first related to the theft of a wallet which contained an eftpos card. Mr Cassidy used the eftpos card 19 times and obtained cash and goods to the total of $6,020. There was no prospect of reparation.

[4] The second involved breaches of protection orders. On 30 July 2017, in breach of the protection order, Mr Cassidy went to the protected person’s address. They began to argue and Mr Cassidy hurled abuse at the victim and continuously called her obscene names. He was asked to leave the address but refused to do so, eventually falling asleep on a couch. When he woke, he again began yelling at the victim and again refused to leave. Some hours later the victim decided to telephone the Police and, while on the phone to the Police, Mr Cassidy grabbed the cellphone from her and broke it in half.

[5] The third category is represented by a single charge of breach of community work. Mr Cassidy had accumulated 290 hours of community work, of which he had

performed 53 hours. The Department of Corrections asked for the outstanding amount of community work to be cancelled, and this was done by Judge Jelas.

Appeal

[6] The Judge structured her sentence in this way:

• Theft of the wallet and use of the eftpos card – 16 months.

• Breaches of protection order – four months.

• Breach of community work – three months.

• Uplift for previous convictions – two months.

• Credit for guilty pleas – five months (20%).

[7] Ms Ives, in careful submissions, submits that Judge Jelas made a number of errors in reaching…

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 Cassidy v Police

Details

AGLC: Cassidy v Police [2017] NZHC 3079
Case: [2017] NZHC 3079
Decision Date: 12 December 2017

CaseChat Overview and Summary

Mr Cassidy appeals the sentence of 20 months' imprisonment handed down against him by Judge J Jelas. Mr Cassidy argues that the sentence is manifestly excessive when the totality of his offending is appreciated. Mr Cassidy has an extensive criminal history and his offending occurred only weeks into a sentence of 18 months' supervision imposed on him on 1 February 2017. The charges against Mr Cassidy fell into three categories. The first related to the theft of a wallet which contained an eftpos card. Mr Cassidy used the eftpos card 19 times and obtained cash and goods to the total of $6,020. The second involved breaches of protection orders. On 30 July 2017, Mr Cassidy went to the protected person's address and, in breach of the protection order, began to argue and hurled abuse at the victim and called her obscene names. He refused to leave the address, eventually falling asleep on a couch. When he woke, he again began yelling at the victim and again refused to leave. The victim decided to telephone the Police, and, while on the phone to the Police, Mr Cassidy grabbed the cellphone from her and broke it in half. The third category is represented by a single charge of breach of community work. Mr Cassidy had accumulated 290 hours of community work, of which he had performed 53 hours. The Department of Corrections asked for the outstanding amount of community work to be cancelled, and this was done by Judge Jelas.

The court considered the arguments made by Ms Ives on behalf of Mr Cassidy. Ms Ives submitted that Judge Jelas made a number of errors in reaching her overall starting point of 23 months' imprisonment, and the end point of 20 months' imprisonment. However, the court found that a starting point of 14 to 16 months was available to the sentencing Judge. The court also found that an uplift of four months for the breaches of the protection order was within range. The court agreed that an uplift of three months for breach of community work was excessive, but found that the overall sentence was not manifestly excessive. The court dismissed the appeal.

Orders