Espie v Police - [2017] NZHC 2741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000129 [2017] NZHC 2741

BETWEEN
LIAM DAVID ESPIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 November 2017

Appearances:

K Paima and C Gentleman for the Appellant
C White for the Respondent

Judgment:

9 November 2017

JUDGMENT OF NATION J

[1] On 30 September 2016, Mr Espie was sentenced to one year intensive supervision for possession of a knife in a public place, shoplifting, being unlawfully in a building and wilful damage.

[2] On 27 June 2017, Mr Espie was charged with breaching the conditions of that sentence by failing to report between given dates on some 16 occasions and failing to attend an alcohol and drug assessment programme as directed. He pleaded guilty to that charge on 25 July 2017 and was to be sentenced on 27 September 2017.

[3] On 22 September 2017, Mr Espie stole two bottles of wine from Countdown and some meat from Pak’nSave. On 24 September 2017, he stole various other items

ESPIE v POLICE [2017] NZHC 2741 [9 November 2017]

costing $74.83 from Pak’nSave. He appeared in Court on theft charges for that offending on 27 September 2017 and pleaded guilty.

[4] On 27 September 2017, Mr Espie was sentenced.1 On all charges, including a re-sentencing in respect of the matters for which he had been sentenced to intensive supervision, Mr Espie was sentenced to seven months’ imprisonment. He appeals against that sentence.

Principles on appeal

[5] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposed was manifestly excessive.4 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.5

The District Court decision

[6] Judge Strettell referred to the PAC report, which recommended imprisonment. The Judge noted that Mr Espie’s criminal history and the present charges were such that they would ordinarily be met by community-based sentences. However, Mr Espie’s apparent struggles with alcohol dependency and proven pattern of non- compliance led the Judge to say that “[Mr Espie] frankly is unlikely to be able to meet any community-based sentence”.6

[7] The Judge noted that previous community-based sentences had been imposed for rehabilitative purposes. He noted that Mr Espie had not complied with them and concluded the only option for the Court was to impose a sentence that would hold him
accountable, would be a deterrent, and might cause Mr Espie to readjust his thinking

1      Police v Espie [2017] NZDC 21980.
2      Criminal Procedure Act 2011, s 250(2).
3      Criminal Procedure Act 2011, s 250(3).
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5

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 Espie v Police

Details

AGLC: Espie v Police [2017] NZHC 2741
Case: [2017] NZHC 2741
Decision Date: 9 November 2017

CaseChat Overview and Summary

Liam David Espie appealed against his sentence of seven months’ imprisonment, imposed by the District Court on 27 September 2017. The sentence was imposed on Mr Espie for multiple charges, including a breach of the conditions of his previous sentence of intensive supervision. The appeal was heard by the High Court on 2 November 2017. The appeal was dismissed on 9 November 2017. The Court was required to determine whether the District Court erred in imposing the sentence and whether the sentence was manifestly excessive. The Court found that there was no error in the sentence and that the sentence was not manifestly excessive. The Court noted that Mr Espie’s criminal history and proven pattern of non-compliance indicated that a community-based sentence would not be viable. The Court found that the District Court was justified in imposing a short term of imprisonment to deter Mr Espie from further offending. The Court found that the sentence imposed was appropriate, given the nature and circumstances of the offending.

Orders