Cristopher v Police - [2022] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000016

[2022] NZHC 457

BETWEEN ANTHONY JAMES ALEXANDER CRISTOPHER
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 March 2022

Counsel:

T Hu on instruction from M Kan for Appellant JK Bola for Respondent

Judgment:

15 March 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 15 March 2022 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. Michael Kan Law, Auckland.

CRISTOPHER v POLICE [2022] NZHC 457 [15 March 2022]

[1] Anthony Cristopher was sentenced to a term of 18 months’ imprisonment for burglary.1 He appeals, arguing the sentence is manifestly excessive. An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.2

[2] At 6.40 pm, on 23 July 2021, Mr Cristopher walked into an Auckland home while the occupant popped next door. Mr Cristopher had earlier waited outside in his car. He took a wallet from a drawer worth $100. The home was protected by closed- circuit television. When shown the footage, Mr Cristopher declined to comment. He was charged 21 September 2021. He pleaded guilty promptly—7 October 2021.

[3] Judge S Bonnar QC adopted a starting point of 20 months’ imprisonment. He added two months for Mr Cristopher’s extensive history of dishonesty and another two because Mr Cristopher was serving a sentence of supervision and community work when he committed the offence. The Judge deducted six months for the swift guilty plea, leaving, as observed, an 18-month term of imprisonment. The Judge granted Mr Cristopher permission to apply for home detention, though the issue was “finely balanced”.3

[4] On behalf of Mr Cristopher, Mr Hu contends the Judge erred by not making a specific allowance for Mr Cristopher’s alleged methamphetamine addiction. Mr Cristopher told the probation officer who prepared his pre-sentence report he was “under the influence of methamphetamine” and using, at that time, “approximately half a gram daily”. The officer considered several factors contributed to the offending: Mr Cristopher’s “problematic use of drugs, gambling and an attitude of entitlement”.4 The officer recorded Mr Cristopher’s desire to remain “clean”.

[5] Mr Hu contends there was “sufficient information to provide an evidential basis of a link between the appellant’s addiction issues and his offending”, and the Judge should therefore have reduced the sentence by 10 or 15 percent.

1      Police v Cristopher [2021] NZDC 25651.
2      Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.
3      Police v Cristopher, above n 1, at [10].
4      Elsewhere in the report, the officer recorded Mr Cristopher “has a longstanding drug problem”.

[6] Section 24(2)(d) of the Sentencing Act 2002 provides a defendant “must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence”. This explains why the Court of…

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 Cristopher v Police

Details

AGLC: Cristopher v Police [2022] NZHC 457
Case: [2022] NZHC 457
Decision Date: 15 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Anthony James Alexander Cristopher appealed against his 18-month imprisonment sentence for burglary. The case was heard in Auckland and the appeal was dismissed by Downs J on 15 March 2022. The primary legal issue was whether the sentence imposed was manifestly excessive, considering Cristopher's methamphetamine addiction and other mitigating factors. Cristopher argued that the sentence should be reduced by 10-15% due to his addiction, which was not specifically addressed by the sentencing judge.

The court considered whether the addiction was sufficiently established to warrant a discount. The pre-sentence report noted Cristopher's problematic drug use, gambling, and attitude of entitlement, but also his motivation to remain clean. However, the court found that Cristopher had not provided persuasive evidence of the causal link between his addiction and the offence, and that even if a discount were appropriate, it could have been offset by other factors such as a higher starting point for the burglary and a greater uplift for his criminal history. Additionally, the court noted that Cristopher had a history of not engaging with rehabilitation programs, making a significant discount for addiction less likely.

The court concluded that even if there was an error in the sentencing, the 18-month term of imprisonment was not manifestly excessive. Therefore, the appeal was dismissed. The court did not find it necessary to determine definitively whether the pre-sentence report could constitute evidence of addiction, as the outcome would not have changed regardless.

Orders