De La Hunt v The Queen - [2014] NZHC 1144

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000022 [2014] NZHC 1144

BETWEEN
ANDREA VIRGINIA ROCHELLE

DE LA HUNT Appellant

AND

THE QUEEN Respondent

CRI-2014-409-000023

BETWEEN ANDREA VIRGINIA ROCHELLE DE LA HUNT
Appellant

ANDTHE QUEEN Respondent

Hearing: 1 May 2014

Appearances:

A G James for Appellant
K J Basire for Respondent

Judgment:

27 May 2014

JUDGMENT OF GENDALL J

Introduction

[1] This is an appeal against two sentences imposed at different times by

His Honour Judge Garland in the District Court.

[2] The appellant was convicted and then sentenced on the two occasions in question as follows:

(a) On 26 September 2013 to an end sentence of two years, six months

(the first sentencing) on each of four charges of accessing a computer

DE LA HUNT v R [2014] NZHC 1144 [27 May 2014]

system for a dishonest purpose (s 249(1)(a) Crimes Act 1961) and on one charge of breach of home detention (s 80S Sentencing Act 2002) to five months imprisonment, the sentences to be served concurrently.

(b)On 19 February 2014 to a sentence of imprisonment of 14 months (the second sentencing) on one charge of forgery (s 256(1) Crimes Act
1961) which sentence was cumulative on the first sentence.

[3] The appellant appeals in respect of both sentences as being manifestly excessive. With regard to the first sentencing she essentially advances the following reasons:

(a) The District Court Judge failed to treat her bipolar disorder as a mitigating factor in sentencing.

(b)The District Court Judge failed to apply a discount for the level of her compliance with the sentence of home detention.

(c) The District Court Judge failed to take account that she worked well, and to her credit was able to pay significant amounts towards reparation due and owing.

(d)The appellant’s lack of compliance with the sentence it is said was not assisted by lack of continuity with probation officers.

(e) That, despite deceiving the probation officers as to the true nature of her work, the appellant nonetheless did work from premises at
1/569 Cashel Street and the lawful occupiers of that address were aware of the nature of her work, the premises being operated as a brothel.

[4] In relation to the second sentencing the appellant contends that the term imposed to the extent that it was cumulative was excessive, particularly having regard to the totality principle.

Background facts

[5] Earlier on, 29 November 2011 the appellant was sentenced to a term of 12 months home detention (the home detention sentencing) relating to 20 charges of dishonesty. With this in mind it has been suggested by the Crown here that the appellant should be considered as a recidivist offender, she having amassed 72 other dishonesty convictions as well as convictions for attempted murder and arson.

[6] Whilst on the sentence of home detention the appellant committed further offending which was the subject of the first sentencing. This related to deceiving the Department of Corrections resulting in four charges of accessing a computer system for 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.

Continue reading De La Hunt v The Queen

Details

AGLC: De La Hunt v The Queen [2014] NZHC 1144
Case: [2014] NZHC 1144
Decision Date: 27 May 2014

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against two sentences imposed by Judge Garland in the District Court. The appellant, Andrea De La Hunt, was convicted and sentenced on two separate occasions for accessing a computer system for dishonest purposes, breaching home detention, and forgery. The appellant argued that the sentences were manifestly excessive and appealed on various grounds, including the failure to consider her bipolar disorder as a mitigating factor and the excessiveness of the cumulative sentence. The Court found that the District Court judge did not err in sentencing the appellant and dismissed the appeal, affirming that the sentences were within the appropriate range and not manifestly excessive.

Orders