D v Police - [2019] NZHC 2177

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT/ACCUSED/VICTIM/CONNECTED PERSONS PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-14

[2019] NZHC 2177

BETWEEN
D

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
28 June 2019

10 July 2019 – Further submissions received from Appellant
7 August 2019 – Reply submissions received from Respondent 21 August 2019 – Reply submissions received from Appellant

Appearances:

Appellant in Person

S B Manning for the Respondent

Judgment:

2 September 2019

JUDGMENT OF CULL J

[1] D appeals against his conviction1 and sentence2 for 11 offences: threatening grievous bodily harm (three charges),3 threatening to kill (five charges)4 and possession of an offensive weapon (three charges).5 The threat charges relate to various threats communicated via text message, Facebook and email, spanning a

1      Police v [D] [2018] NZDC 1777 [Conviction Decision].
2      Police v [D] [2019] NZDC 6520 [Sentencing Decision].
3      Crimes Act 1961, s 306, maximum penalty seven years’ imprisonment.
4      Section 306, maximum penalty seven years’ imprisonment.
5      Section 202A, maximum penalty three years’ imprisonment.

D v NEW ZEALAND POLICE [2019] NZHC 2177 [2 September 2019]

period of about 10 months, directed primarily to D’s former partner and her parents. The weapons charges relate to weapons in D’s possession when he was stopped by Police, in a campervan he had hired, while travelling to Napier, where his partner lived.

[2] In April 2019, D was sentenced to a total of six years’ imprisonment,6 with a minimum period of three years, eight months.

[3] D appeals both his convictions and sentence on the grounds that the integrity of the trial and its process were compromised, and the Judge erred in fact and law.

[4] The Crown opposes the appeals against both conviction and sentence on the following grounds:

(a)The evidence against D was overwhelming.

(b)The District Court Judge applied the correct legal principles.

(c)The sentence imposed was commensurate with the very serious nature of the offending.

(d)The sentence was justified to deter D, and to protect the public and in particular his former partner from him.

Background and the District Court decisions

[5] The relevant facts are set out in detail in the District Court’s reserved judgment.7 In summary, D and his partner, CM, were in a relationship for some 12 years, up until November 2016. There is one child of the relationship, R, who is eleven years old. D and his partner initially lived in Hawke’s Bay, then moved to Australia in 2011 and ended up living in Brisbane. They enjoyed a comfortable lifestyle in Brisbane with good jobs and good income.

6 Sentencing Decision, above n 2, at [73]. This was made up of five years and six months’
imprisonment for the eight charges of threatening to kill or cause grievous bodily harm, and six months’ imprisonment for the unlawful possession of offensive weapons.…

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 D v Police

Details

AGLC: D v Police [2019] NZHC 2177
Case: [2019] NZHC 2177
Decision Date: 2 September 2019

CaseChat Overview and Summary

D appeals against both his conviction and sentence for 11 offences. D was convicted of eight counts of threatening to kill or cause grievous bodily harm, and three counts of possession of an offensive weapon. D's former partner, CM, received numerous threatening text messages, emails and Facebook posts from D over a period of about 10 months. D was also found in possession of a knife, a crossbow with arrows, and a machete. The District Court Judge convicted D on all charges and sentenced him to a total of six years imprisonment, with a minimum term of three years, eight months. D appeals both conviction and sentence on the basis that the trial was unfair and that the Judge erred in fact and law. The Crown opposes the appeal on the basis that the evidence against D was overwhelming, the Judge applied the correct legal principles, and the sentence was appropriate for the seriousness of the offending. In relation to the conviction appeal, D's arguments focus on the authenticity of the text messages, the disclosure of his Vodafone records, and the Judge's credibility findings. The Court rejects D's arguments on the basis that the Judge had ample evidence to make findings in favour of the victim's credibility. In relation to the sentence appeal, the Court finds the Judge was justified in adopting a starting point near the top of the range for multiple occurrences of threats to kill and cause grievous bodily harm, and that the six months uplift for the possession of offensive weapons was moderate and appropriate. The appeal against conviction and sentence is dismissed.

Orders