Crosswell v Police - [2012] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000050

CRI-2012-419-000051 [2012] NZHC 2435

BETWEEN JUSTIN GEOFFREY CROSSWELL Appellant

ANDNEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 19 September 2012

Appearances: M McLeod and R O Nicholson for Appellant
J Tarrant for Respondent

Judgment: 20 September 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 20 September 2012 at 2.00 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Hamilton
Copy to: M Mcleod, Hamilton
R O Nicholson, Hamilton

CROSSWELL V NZ POLICE & DEPT OF CORRECTIONS HC HAM CRI-2012-419-000050 [20 September
2012]

[1] On 30 July 2012 Judge Connell sentenced the appellant Mr Crosswell to nine

months’ imprisonment. The nine months was made up as follows: (a) three months for two breaches of release conditions; (b) one month for breach of community work; and
(c) five months for two other breaches of Court release conditions in substitution for community work.

The sentences were cumulative leading to the end sentence of nine months.

[2] The factual background is somewhat complicated. On 2 August the appellant was sentenced to imprisonment in relation to charges of unlawfully being in an enclosed yard x3; failure to answer District Court bail x2; breach of community work; common assault (domestic); and driving while disqualified.

[3] On 28 November 2011 he was released from the Manawatu Prison on conditions of release. He then breached those conditions of release on 5 and 12
January. On 9 February 2012 he was sentenced to 80 hours community work in relation to those two breaches.

[4] The appellant then failed to report for his community work on 12 March. He also further breached his release conditions on 5 March and 16 May. Because of his failure to report for community work an application was made to cancel the sentence. The appellant pleaded guilty to all the offending and was sentenced by Judge Connell accordingly.

[5] Mrs McLeod raised a preliminary point. She submitted that it appeared from the Judge’s sentencing notes that in imposing the sentence of five months’ imprisonment he was doing so in relation to the original sentence. Ms Tarrant submitted the following paragraph from the Judge’s sentencing notes was ambiguous:

[14] On reviewing the sentence as I consider the charges that you faced in respect of which you were sentenced and look at what outcome I might consider appropriate in view of those, I have come to a view that six months’ imprisonment is warranted less one for your plea of guilty. That is a five month term and that will be served cumulatively as well.

[6] I agree it is ambiguous but it is unlikely that an experienced District Court

Judge would have made the error that Mrs McLeod suggests was made.

[7] Mrs McLeod also made the point that it appeared strange the Judge had imposed a sentence of five months for the guilty pleas on two counts of breach of release conditions…

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 Crosswell v Police

Details

AGLC: Crosswell v Police [2012] NZHC 2435
Case: [2012] NZHC 2435
Decision Date: 20 September 2012

CaseChat Overview and Summary

Justin Geoffrey Crosswell appealed against his nine-month imprisonment sentence, imposed by Judge Connell, for multiple breaches of release conditions and community work. The sentence was cumulative, comprising three months for two breaches of release conditions, one month for breaching community work, and five months for two other breaches of release conditions, which substituted for community work. The appellant's breaches began shortly after his release from prison, indicating a pattern of non-compliance with court orders. The appellant's history of non-compliance with court orders, including multiple convictions for similar offences, was a significant factor in the sentencing decision.

The legal issues before the court involved the interpretation of the sentencing notes and whether the cumulative sentence was manifestly excessive. The court considered whether the sentence imposed for the breaches of release conditions was appropriate, especially in light of the appellant's history of non-compliance with court orders and community work. The court also needed to determine if the sentence was proportionate to the offending and whether the cumulative sentence was justified given the appellant's ongoing breaches of release conditions.

The court examined the appellant's history of non-compliance, which included numerous previous convictions for similar offences. The court noted that the appellant's breaches began shortly after his release from prison, indicating a pattern of non-compliance. The court also considered the Court of Appeal's decision in R v Morgan, which stated that the substituted sentence should not include any element of sanction for the failure to comply with the community work sentence. The court concluded that the cumulative sentence of nine months was appropriate given the appellant's history and pattern of non-compliance. The court found that the sentence, while at the higher end of the scale, was not manifestly excessive.

The court dismissed the appeal, affirming the sentence imposed by Judge Connell. The cumulative sentence of nine months was considered proportionate and appropriate given the appellant's history and the nature of the offending. The court held that the sentence reflected the seriousness of the breaches and the appellant's propensity to fail to comply with court orders.

Orders