Colvin v The Queen - [2021] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000099

[2021] NZHC 400

BETWEEN
PAUL LAURENCE COLVIN

Appellant

AND

THE QUEEN

Respondent

Hearing: 10 February 2021

Appearances:

T Sutcliffe for the Appellant A Alcock for the Respondent

Judgment:

5 March 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 5 March 2021 at 4:30 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Thomas Sutcliffe, Barrister, Hamilton Hamilton Legal, Hamilton

COLVIN v R [2021] NZHC 400 [5 March 2021]

[1] Mr Colvin appeals against sentence on one charge of assault with a weapon; six charges of assault on a child and two charges of assault with intent to injure. The charge notice was dated October 2015. He entered pleas to an amended charge notice on 27 August 2020 and was convicted. He was sentenced on 19 October 2020 by Judge Menzies in the Hamilton District Court to 12 months’ intensive supervision.1

[2] Mr Colvin appeals on the basis that Judge Menzies did not adequately consider his remand in custody and time spent on electronically monitored bail. He says he should be convicted and discharged, or at most the sentence should be six months’ supervision.

[3] The respondent says that the end sentence imposed was within the range available to the sentencing judge; intensive supervision was consistent with the relevant purposes and principles of offending; and accordingly the appeal ought to be dismissed.

Law

[4] The appellant has an appeal as of right under Section 244 of the Criminal Procedure Act 2011 ("the Act").

[5] Section 250 of the Act sets out how a court must determine a sentence appeal and requires both identification of an error and a need to be satisfied that a different sentence should be imposed.

[6] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:2

…the standard of appellate review in sentence appeals… requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.

1 R v Colvin [2020] NZDC 25392.
2 Palmer v R [2016] NZCA 541, at [17].

[7] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply, and the Court would not intervene where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.3

Factual background

[8] The key facts of the offending were summarised by Judge Menzies at sentencing. It involved assaults over a period of three years from 2013 to 2016. There were three victims. The two oldest…

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 Colvin v The Queen

Details

AGLC: Colvin v The Queen [2021] NZHC 400
Case: [2021] NZHC 400
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Colvin appealed against his sentence imposed by Judge Menzies in the Hamilton District Court. Colvin was convicted on one charge of assault with a weapon, six charges of assault on a child, and two charges of assault with intent to injure. Colvin appealed on the basis that Judge Menzies did not adequately consider his time spent in custody and electronically monitored bail. The respondent argued that the sentence imposed was within the range available to the sentencing judge and that intensive supervision was consistent with the relevant purposes and principles of offending.

The court had to determine whether there was a material error in the sentence imposed by the District Court and whether the sentence should be different. The court considered whether the Judge had adequately considered Colvin's time in custody and electronically monitored bail and whether the sentence imposed was within the range available to the sentencing judge. The court also considered the differences between intensive supervision and supervision as sentences and whether the Judge had jurisdiction to impose a sentence of intensive supervision.

The court found that while the Judge had considered Colvin's time in custody and electronically monitored bail, he did not quantify the discounts he granted. However, the court found that the Judge had appropriately considered the need for a sentence to protect the public and to rehabilitate Colvin effectively. The court also found that the Judge did not have jurisdiction to impose a sentence of intensive supervision as the conditions imposed by the Judge could be regularly imposed on a sentence of supervision. The court substituted the sentence of 12 months' intensive supervision with a sentence of 12 months' supervision on the same conditions imposed by the Judge. The appeal was allowed.

The court's decision highlights the importance of considering all relevant factors when imposing a sentence and the need for a court to have jurisdiction to impose a particular sentence. The court also emphasised the differences between intensive supervision and supervision as sentences and the need for a court to consider the relevant purposes and principles of offending when imposing a sentence.

Orders