Corfield v The Queen - [2016] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000040

CRI-2015-412-000041 [2016] NZHC 50

BETWEEN
DAVID ROSS CORFIELD

Appellant

AND

THE QUEEN Respondent

Hearing: 2 February 2016

Appearances:

H Henderson for Appellant
C E R Power for Respondent

Judgment:

2 February 2016

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Dunedin
Copy to: H Henderson, Dunedin

CORFIELD v THE QUEEN [2016] NZHC 50 [2 February 2016]

[1] On 15 September 2014 Mr Corfield was sentenced to imprisonment for a

total period of two years, nine months’ imprisonment.1

[2] The sentence was made up of two years, three months’ imprisonment for injuring by unlawful act, male assaults female, attempted unlawful taking, and resisting a constable. It was uplifted by a cumulative six months’ imprisonment for breach of a protection order.

[3] Mr Corfield seeks to appeal against the imposition of the six month uplift for breach of the protection order.

[4] The appeal is out of time. As noted the original sentence was imposed on 15

September 2014. The appeal was only filed on 3 November 2015 (originally it had been sent to the Court of Appeal on 20 October 2015). The application for leave to appeal is thus almost a year out of time.

[5] Mr Henderson suggested that Mr Corfield may have been mistaken and understood that an appeal was to be lodged and properly accepts that from his notes on the file that may have been Mr Corfield’s understanding. However for whatever reason as the appeal is out of time one of the factors the Court will have regard to when considering whether to grant leave is the merit of the appeal.

[6] Mr Henderson has very helpfully filed some preliminary submissions addressing that point, essentially submitting that a starting point of at most no more than three months, with a discount for the guilty plea, would have been an appropriate response for the breach of the protection order in this case or alternatively a sentence concurrent with the other sentences was an option to the sentencing Court. He argues that the starting point of six months for the breach of the protection order was manifestly excessive.

[7] In response Mr Power submits that in the circumstances of this case the starting point of six months was available to the Judge but that in any event when the
totality of the sentence overall, not just for this breach of the protection order, but for

1 R v Corfield DC Dunedin CRI-2014-012-000768, 15 September 2014, per Judge S J Coyle.

the other offending for which Mr Corfield was before the Court, is taken into account the end sentence of two years, nine months’ imprisonment was well open to the Judge.

[8] Relevantly the circumstances of the breach of the protection order are that on

11 January 2014 a temporary protection order was made final in the Family Court at Dunedin. Shortly afterwards Mr Corfield breached that order and was sentenced to imprisonment for one month.

[9] Then some 15…

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 Corfield v The Queen

Details

AGLC: Corfield v The Queen [2016] NZHC 50
Case: [2016] NZHC 50
Decision Date: 2 February 2016

CaseChat Overview and Summary

In the High Court of New Zealand, David Ross Corfield appealed against his sentence imposed by the Dunedin District Court. Corfield was sentenced to two years and nine months' imprisonment, which included a six-month uplift for breaching a protection order. The primary legal issue before the court was whether the six-month uplift for the breach of the protection order was manifestly excessive. Corfield's legal counsel argued that a more appropriate sentence would have been at most three months with a discount for the guilty plea or a sentence concurrent with the other sentences imposed. In response, the Crown argued that the sentence was within the discretion of the sentencing judge, considering the totality of Corfield's offending, which included a serious assault and a history of violence and threatening behaviour.

The court considered the nature of the breach, which involved sending a threatening letter to the victim from prison, and Corfield's history of violence and breaches of protection orders. The court held that the sentence of six months for the breach of the protection order was not manifestly excessive, given the serious nature of the threats and Corfield's criminal history. The court also found that the overall sentence of two years and nine months' imprisonment was not excessive in light of the totality of the offending. Therefore, the court dismissed Corfield's application for leave to appeal.

Orders