Crean v Police - [2015] NZHC 3203

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-44 [2015] NZHC 3203

BETWEEN
PATRICK KEVIN CREAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2015

Counsel:

A J Hamblett for Appellant
T A Needham for Respondent

Judgment:

15 December 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: Joseph Hamblett (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent

CREAN v POLICE [2015] NZHC 3203 [15 December 2015]

Introduction

[1] Judge Riddell sentenced the appellant, Mr Crean, to 13 months’

imprisonment on 20 October 20151 after he pleaded guilty to the following charges: (a) two charges of breaching a protection order;2 and
(b) one charge of breach of release conditions.3

[2] Mr Crean appeals the sentence on the basis that it is manifestly excessive.

[3] The Crown submits that the sentence imposed was within range for the offending, and it is not manifestly excessive.

Facts

[4] Mr Crean was in a relationship with the victim which ended in early 2015. A

protection order has been in place for the safety of the victim since 5 December

2014.

Contravenes protection order (x2)

[5] On 29 June 2015, Mr Crean was at the victim’s house, where they were consuming alcohol together. They began to argue and Mr Crean refused to leave the address despite being asked repeatedly. The victim was able to leave the address and she contacted Police. Mr Crean was found by Police hiding under the victim’s bed. In explanation, Mr Crean said that the victim had invited him back, taken all his money and wanted to go out drinking contrary to his wishes.

[6] Nine days later, on 8 July 2015, Mr Crean was again at the victim’s house. Mr Crean and the victim were having a few alcoholic drinks but they again began to argue. The victim asked Mr Crean to leave and he refused. The victim then left the
house to get away from Mr Crean. She started walking down the road and Mr Crean

1      Police v Crean [2015] NZDC 21304.
2      Domestic Violence Act 1995, ss 19 and 49. This carries a maximum penalty of three years’
imprisonment.
3      Sentencing Act 2002, s 96(1). This carries a maximum penalty of one year’s imprisonment.

followed her for approximately one kilometre. They continued to argue, with the victim repeatedly telling Mr Crean to go away. The victim walked to a public toilet. She locked herself in to get away from Mr Crean and waited there until the Police arrived. Again, Mr Crean said, in explanation, that the victim had invited him over and wanted to take his money.

Breach of release conditions

[7] The incident on 8 July 2015 also gave rise to the third charge of breaching release conditions. Mr Crean was released from prison on 17 June 2015. One of his release conditions required him not to associate with the victim.

Judge Riddell’s sentence

[8] Judge Riddell sentenced Mr Crean to one year’s imprisonment for the 8 July

2015 breach of protection order. Her Honour imposed a…

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.

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Details

Case: [2015] NZHC 3203
Decision Date: 15 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Patrick Kevin Crean appealed against the sentence imposed by Judge Riddell, which was 13 months' imprisonment. The appellant pleaded guilty to two charges of breaching a protection order and one charge of breach of release conditions. The Crown argued that the sentence was within the appropriate range for the offending and not manifestly excessive.

The appellant's counsel argued that the sentence was manifestly excessive as it did not account for his early guilty pleas and other mitigating factors. The court considered the sentencing principles, which required the Judge to set a starting point for the sentence by looking at the nature and extent of the offending, followed by a consideration of whether there is anything in the offender's personal circumstances that would justify adjustments to that starting point.

The court found that the Judge's sentence was not manifestly excessive and dismissed the appeal. The court found that concurrent sentences of 15 months' imprisonment for the breach of protection order charges and one month for the breach of release condition charge were appropriate, with an uplift of four months to account for the appellant's previous convictions. The court also found that the appellant was entitled to a 25% discount for his early guilty plea, resulting in an end sentence of 14 months' imprisonment. The court noted that home detention was not appropriate in this case due to the appellant's previous convictions and the fact that the present offending occurred shortly after his release from a prison sentence for earlier breaches of a protection order.

Orders