Downes v Police - [2016] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-34 [2016] NZHC 2580

BETWEEN
MAUI PHILIP DOWNES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
26 October 2016 via AVL

(Heard at Wellington)

Counsel:

D P OʼNeill for Appellant
MJR Blaschke for Respondent

Judgment:

28 October 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 28th day of October 2016

DOWNES v NEW ZEALAND POLICE [2016] NZHC 2580 [28 October 2016]

[1] On 7 July 2016, after receiving a sentence indication, Mr Downes pleaded guilty to the following charges:

(a) breaching community work;1

(b) driving with excess breath alcohol;2 (c) carelessly operating a vehicle;3 and (d) assault with intent to injure.4

[2] Judge Ross subsequently sentenced him (in accordance with the earlier indication) to 25 months’ imprisonment.5 Mr Downes now appeals that sentence on the grounds it was manifestly excessive. He says that the starting point was too high, the uplift for previous offending was too high, and that a discount should have been given for mitigating personal factors.

Facts

[3] In June 2015, Mr Downes was sentenced to 75 hours of community work on charges of behaving threateningly and wilful trespass. He started his community work in July, and last reported in November. Between July 1 and December 2, he failed to show up 14 times. Overall, he completed 42.75 of the required hours.

[4] On 5 January 2016, a member of the public called police to say Mr Downes’ vehicle was being driven erratically in Levin. Police located him, and performed an evidential breath test. His level was 576 micrograms of alcohol per litre of breath, over twice the legal limit.

[5] On 12 February 2016, Mr Downes was driving on SH57 near Shannon, in a

100kmh zone. He tried to overtake a truck where there was a bend in the road and

1      Sentencing Act 2002, s 71.
2      Land Transport Act 1998, s 56.
3      Land Transport Act 1998, s 37.
4      Crimes Act 1961, s 193.
5      Police and Corrections v Downes [2016] NZDC 13768. He was convicted and discharged on the careless driving charge.

he could not see what lay beyond it. A police car came over a rise and had to take evasive action to avoid colliding with him. Mr Downes said that he had thought the road was straight. He was also in breach of his learner’s licence because there was no supervising driver.

[6] On 15 February 2016, Mr Downes and his then partner Ms Atarau were at Ms Atarau’s flat, drinking. Mr Downes assaulted her over a period of over two hours, delivering at least several blows to the head.6 Ms Atarau’s flatmate heard the assault and reported it to the police. Ms Atarau refused to be taken to hospital and was subsequently uncooperative. Mr Downes told police she was drunk and fell over. She was seen to have blood coming from her ear, swollen fingers on her right hand,…

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 Downes v Police

Details

AGLC: Downes v Police [2016] NZHC 2580
Case: [2016] NZHC 2580
Decision Date: 28 October 2016

CaseChat Overview and Summary

In Downes v Police, the High Court of New Zealand heard an appeal against the sentence imposed on Mr Downes, who had pleaded guilty to breaching community work, driving with excess breath alcohol, carelessly operating a vehicle, and assaulting with intent to injure. The District Court had sentenced Mr Downes to 25 months' imprisonment, and he now appeals, arguing that the sentence was manifestly excessive. The appeal focuses on three main issues: the starting point for the assault charge, the uplift for previous offending, and the failure to discount for personal mitigating factors.

The Court considered the starting point for the assault charge, noting that while the assault was serious, the victim had declined hospital treatment, making it difficult to assess the precise nature and duration of the attack. The Court concluded that a starting point of 20 months was appropriate, although at the severe end of the available range.

Regarding the uplift for previous offending, the Court found that an uplift of eight months, which constituted 40% of the starting point, was too high. The Court noted that while Mr Downes had a significant history of previous convictions, many of them were relatively minor and dated back several years. The Court also considered Mr Downes' history of abuse in state care and his recent efforts to address his alcohol problem, finding that these mitigating factors warranted a discount.

Finally, the Court addressed the failure to discount for personal mitigating factors. The Court found that Mr Downes' history of abuse in state care and his recent efforts to address his alcohol problem warranted a discount. The Court concluded that the original sentence was manifestly excessive, and substituted a sentence of 20 months' imprisonment, a reduction of 20%.

The Court allowed the appeal, quashed the original sentence, and substituted a sentence of 20 months' imprisonment. The Court also granted leave to apply for home detention, although the previous addresses proposed for that purpose had not been deemed suitable.

Orders