Francis v Police - [2018] NZHC 2307

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-000028

[2018] NZHC 2307

BETWEEN
ROSEMARY JAN FRANCIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 September 2018 (via AVL)

Appearances:

A Harvey for the Appellant

J Johnson-Aufa’i for the Respondent

Judgment:

4 September 2018

JUDGMENT OF WOOLFORD J

Solicitors: Thomson Wilson, Whangarei
Marsden Woods Inskip Smith (Office of the crown Solicitor), Whangarei

FRANCIS v NZ POLICE [2018] NZHC 2307 [4 September 2018]

[1] On 13 July 2018, having pleaded guilty to driving with excess blood alcohol on a third or subsequent occasion and dangerous driving, Rosemary Jan Francis was sentenced to six months home detention and six months post-release conditions. Ms Francis was also ordered to pay reparation in the sum of $1500 and medical expenses and analysts fees in the sum of $209.25. In addition, Ms Francis was disqualified from driving for a period of 12 months and one day on the blood alcohol charge and 12 months on the dangerous driving charge. Finally, the Judge ordered that once Ms Francis regained her licence, it was to be a zero alcohol licence for a period of three years.

[2] Ms Francis now appeals against sentence, in particular against the length of the sentence of home detention on the basis that it deviated from a sentence earlier indicated by another Judge.

Sentence indication

[3] On 15 May 2018, Judge GL Davis gave Ms Francis a sentence indication. He stated that if Ms Francis pleaded guilty he would adopt a starting point of around eight months imprisonment. Ms Francis would also receive credit for guilty pleas, which meant that the Court would be prepared to commute the sentence of imprisonment if there was a favourable pre-sentence report and an electronically-monitored address available. Judge Davis stated whether it would be community detention or home detention would be a matter that could be debated on sentencing, but that his instinct, given Ms Francis’ three convictions in a little over five years, would be home detention rather than community detention. It was on the basis of this sentencing indication that Ms Francis pleaded guilty to the two charges.

District Court sentencing

[4] On 13 July 2018, Ms Francis appeared before Judge DJ Sharp for sentencing. Judge Sharp was obviously aware of the sentence indication of an electronically- monitored sentence, but appears to have overlooked the indication given by Judge Davis that he would adopt a starting point of about eight months imprisonment. After reviewing the facts of the case, Judge Sharp stated that the starting point to him would be something in the vicinity of 14 months imprisonment. He then gave credit

for Ms Francis’ pleas of guilty and commuted the otherwise appropriate sentence of imprisonment to one of six months home detention, which is said to be the equivalent of 12 months imprisonment.

Appellant’s submissions

[5] Ms Francis submits that Judge Sharp erred by not first indicating to her that the sentence indication was not…

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.

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Details

Case: [2018] NZHC 2307
Decision Date: 4 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Rosemary Jan Francis appealed against her sentence, arguing that the length of her home detention deviated from a previous sentence indication. Francis was sentenced to six months of home detention and six months of post-release conditions after pleading guilty to driving with excess blood alcohol on a third or subsequent occasion and dangerous driving. The appeal focused on the deviation from the sentence indication given by Judge GL Davis, which suggested an eight-month imprisonment starting point, with the possibility of commuting to home detention based on certain conditions.

The legal issues in the case centred on whether Judge DJ Sharp erred in not following the indicated sentence and not providing Francis an opportunity to confirm her pleas of guilty. Section 115 of the Criminal Procedure Act 2011 requires a court to allow a defendant to withdraw their guilty plea if the proposed sentence exceeds the indicated sentence by the same type or types. The Court had to determine if the deviation warranted quashing the sentence and remitting the matter back to the District Court, or if the sentence could be upheld despite the error.

The Court found that Judge Sharp did not adequately address the sentence indication, leading to an expectation that Francis could have reasonably relied upon. The Court held that the sentence should conform to the original indication, and since the starting point of eight months imprisonment was within the appropriate range, the sentence should be adjusted on appeal. Consequently, the sentence of six months home detention was quashed and replaced with a sentence of three months home detention, while all other orders were confirmed.

Orders