Henry v Police - [2018] NZHC 394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000021

[2018] NZHC 394

BETWEEN
JASON HENRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 March 2018

Appearances:

Mireama Houra for the Appellant Annabel Linterman for the Respondent

Judgment:

13 March 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 March 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

HENRY v NEW ZEALAND POLICE [2018] NZHC 394 [13 March 2018]

Introduction

[1] The appellant, Jason Henry, was sentenced to 14 months’ imprisonment in the Auckland District Court after pleading guilty to a range of predominantly property and dishonesty charges.

[2] Leave was granted for him to apply for home detention if a suitable address became available. That occurred and Mr Henry was re-sentenced by a different Judge to a term of eight months’ home detention.

[3] He now appeals on the basis that the substituted sentence should have been seven months’ home detention or, alternatively, the substituted sentence ought to have taken account of time served.

Factual background

The offending

[4] This is an unorthodox sentence appeal. It is not concerned with whether the Judge erred in his assessment of the offending or the circumstances of the offender. Rather, the complaint is that the Judge did not comply with the requirements of the Sentencing Act 2002 (“the Act”) when substituting a sentence of home detention. Despite this, it is helpful to briefly set out Mr Henry’s offending.

[5] The relevant offending occurred over the space of one year between June 2016 and June 2017.

[6] On 9 June 2016 Mr Henry was found driving a $27,000 BMW in Manurewa. The car had been stolen six months earlier. It had an incorrect registration sticker and inside the car a methamphetamine pipe was found. Mr Henry was charged with receiving the car and possession of the pipe.

[7] Six months later, on 13 December 2016, Mr Henry unlawfully took a mountain bike in Newmarket after cutting through the lock using bolt cutters. He was charged with unlawfully taking the bicycle and possessing instruments for the purpose of taking a vehicle.

[8] The following day he took another bicycle from Britomart. Then five months later, on 5 May 2017, he took a bicycle from Panmure.

[9] In addition to this offending he faced two charges of breach of bail on 9 September and 2 December 2016.

Procedural history

[10] Mr Henry pleaded guilty to all charges and appeared for sentence before Judge P A Cunningham on 10 October 2017. She sentenced him to 14 months’ imprisonment but granted leave to apply for home detention should a suitable address become available.1

[11] When a suitable address became available two and a half months later Mr Henry applied for the sentence of imprisonment to be substituted for one of home detention. The application came before Judge E P Paul on 22…

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 Henry v Police

Details

AGLC: Henry v Police [2018] NZHC 394
Case: [2018] NZHC 394
Decision Date: 13 March 2018

CaseChat Overview and Summary

Jason Henry appeals against his sentence of eight months' home detention imposed by the District Court. Henry argues the substituted sentence should have been seven months' home detention or, alternatively, the substituted sentence should have taken account of time served. The High Court considered the statutory framework governing the substitution of a sentence of imprisonment for home detention and the discretion afforded to the sentencing Judge. The Court noted that the statutory provisions did not mandate a strict mathematical approach and that the decision to substitute a sentence of home detention was a matter of judicial discretion. The Court found no identifiable error in the Judge's decision and dismissed the appeal. The Court emphasised that while reasons for departing from the usual convention might be expected, the absence of reasons was not necessarily fatal. The appeal was dismissed.

Orders