G v Police - [2019] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2018-463-122

[2019] NZHC 411

BETWEEN
G

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 February 2019

Counsel:

J Temm for Appellant

A McConachy for Respondent

Judgment:

12 March 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 12 March 2019 at 12.30 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Jonathan Temm, Barrister, Rotorua

G v NEW ZEALAND POLICE [2019] NZHC 411 [12 March 2019]

[1] G appeals against his sentence of 13 months two weeks imprisonment following his conviction on two charges of breaching a protection order.1 The sentence was imposed on 29 November 2018.

Facts and appealed sentence

Facts relevant to offending

[2] The facts of the offending are taken from the police summaries of facts on which the two convictions rest. On occasion this has been supplemented by other material provided for the appeal.2

[3] G and the victim were in a relationship for approximately five years. The relationship ended in 2015. He is now 29 years old. He would, therefore, have been around twenty or twenty-one years old when the relationship began.

[4]The first child, T, was born on 22 April 2015.

[5] On 16 May 2015 G assaulted the victim and was subsequently convicted on 17 July 2015 of the offence of male assaults female, for which he received a sentence of nine months’ supervision with special conditions. Also, at that time, a final protection order was made prohibiting G from contacting his ex-partner as well as T.3

[6] G and the victim now have two sons. The oldest child T would have been less than a month old at the time the protection order was made. The youngest child, A, was born on 6 February 2017, and so was conceived during the currency of the protection order.

[7] Since the protection order was made in July 2015 G has acquired three convictions for breaching this order.4 None of those breaches involved violence. The first occurred on 24 November 2017 and resulted in the entry of conviction on 20

1      Domestic Violence Act 1995, S 49.
2      For example, the police summary of facts states the protection order applies to both children. In fact the protection order names only one child though its legal effect may be to apply to both children.
3      G FAM 2015-069-000112; CRI 2015-069-0007 06.
4      Convictions entered on 20 December 2017 and 03 July 2018.

December 2017, at which time G was sentenced to one years’ intensive supervision. Then on 24 June 2018 he committed two further breaches of the protection order, which led to conviction on 03 July 2018 and a further sentence of one years’ intensive supervision. It is on the same day that he was sentenced for this offending that he committed the first of the breaches now subject to this appeal against sentence.

[8] Earlier…

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 G v Police

Details

AGLC: G v Police [2019] NZHC 411
Case: [2019] NZHC 411
Decision Date: 12 March 2019

CaseChat Overview and Summary

G appealed against his sentence of 13 months two weeks imprisonment following his conviction on two charges of breaching a protection order. The appeal was heard in the High Court of New Zealand. The legal issues before the court were whether the sentence was manifestly excessive and whether it should be commuted to a sentence of home detention. The court considered the seriousness of the offending, the offender's criminal history, and the mitigating factors present in the case. The court found that the sentence imposed was manifestly excessive and that a sentence of home detention would be more appropriate. The appeal was allowed, and G was sentenced to three weeks home detention to commence from the date of delivery of the judgment.

Orders