Hart v Police - [2014] NZHC 2741

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) AND OF PARAGRAPH [11] OF THIS JUDGMENT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-418-000009 [2014] NZHC 2741

ANTHONY JOHN HART Appellant

v

POLICE Respondent

Hearing: 3 November 2014

Appearances:

M Zintl for Appellant
C D Newman for Respondent

Judgment:

6 November 2014

JUDGMENT OF WHATA J

[1] Mr Hart seeks to appeal against a sentence of 60 hours community work and nine months supervision imposed on a charge of contravening a protection order contrary to ss 19(1)(d) and 49(1)(a) and (3) of the Domestic Violence Act 1995. 1 2
Mr Hart contends that the sentence was manifestly excessive.

1 This is a redacted version of the original judgment. Paragraph [11] has been redacted.
2 Police v Hart DC Westport CRI 2014-9-7510, 18 September 2014.

HART v POLICE [2014] NZHC 2741 [6 November 2014]

Background

[2] Mr Hart had a protection order against him. It appears that he sent text messages to the victim [S] in contravention of the protection order. The Judge in sentencing Mr Hart noted:

[3] Mr Hart, you know I appreciate that you and Ms [ ] are the parents and guardians of two young children and you have got a long way to go in your dealings with each of those two kids, but, you have got a problem. You have got a final protection order made against you. This is your first breach but if you breach again you could be sentenced up to three years’ imprisonment.

[3] The Judge goes on to note:

[4] I note from your previous history that you have had sentences of imprisonment but the last one was back in 2004.

[4] As to the nature of the offending the Judge then had this to say:

[5] … You are setting yourself up to fail and if I put myself in her shoes, receiving those sorts of messages, I would feel scared, and the kids are at that age, they are a bit like a sponge, they are soaking up everything that is going on around them including Mum’s anxiety when she gets these sorts of messages.

[5] Accordingly, the Judge convicted and sentenced Mr Hart to 60 hours community work cumulative. He also sentenced Mr Hart to supervision for a period of nine months with two special conditions:

(a) To live and work where the Probation Officer directs.

(b)To undertake relationship counselling to address separation and anger management issues.

Grounds of appeal

[6] The appellant claims that the end sentence was manifestly excessive having regard to two factors:

(a) There was a material error by the Judge who sentenced the appellant on the mistaken belief that the appellant still had community work

hours outstanding. This was why the sentencing Judge made the community work order (cumulative). Mr Hart contends that no community work was outstanding at the time of sentencing.

(b)Facts existed at the…

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: [2014] NZHC 2741
Decision Date: 6 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand Greymouth Registry, Whata J heard the appeal of Anthony John Hart against a sentence imposed by the District Court. Mr Hart was convicted of contravening a protection order, contrary to sections 19(1)(d) and 49(1)(a) and (3) of the Domestic Violence Act 1995. He was sentenced to 60 hours of community work and nine months supervision. Mr Hart appealed, arguing that the sentence was manifestly excessive due to a material error by the sentencing Judge and the absence of certain information at the time of sentencing.

The court considered Mr Hart's arguments and the evidence presented. The court accepted the evidence of the Kennedys, who provided a valuable insight into Mr Hart's personal characteristics that was not available to the sentencing Judge. The court found that the sentence of 60 hours of community work was excessive for a first offence of this type, but a discharge would not properly reflect the underlying policy concerns with this type of offending.

The court reduced the sentence to 40 hours of community work, with 10 hours to be served concurrently with the existing sentence for community work. The balance of the sentence remained the same. The court suppressed all details identifying the victim, including all references to the victim at paragraph [11], pursuant to section 202(1)(b) and (2)(a) of the Criminal Procedure Act 2011. The appeal was allowed, and the sentence was reduced as outlined above.

Orders