Hough v Police - [2017] NZHC 93

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-98 [2017] NZHC 93

BETWEEN
TERANCE JAMES HOUGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2017

Counsel:

S M M Bolland for Appellant
R H De Silva for Respondent

Judgment:

8 February 2017

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
3 pm on the 8th day of February 2017

HOUGH v NEW ZEALAND POLICE [2017] NZHC 93 [8 February 2017]

[1] On 11 November 2016 Mr Hough was sentenced by Judge Black to a combined total of 19 months’ imprisonment for two discrete tranches of offending. He now appeals the sentence of 10 months’ imprisonment on the first tranche. That sentence was imposed in substitution for an earlier, community based, sentence which had been imposed by Judge Hobbs in December 2015.

Background

Earlier offending

[2] On 30 October 2015 Mr Hough broke into a dwelling house, taking a few minor items and some cash. A neighbour confronted him and he was later stopped by police who found cannabis in his car. Mr Hough subsequently pleaded guilty to one count each of burglary, possession of cannabis and possession of cannabis oil.

[3] The pre-sentence report recommended a sentence of community work and supervision. Judge Hobbs took a starting point of 18 months’ imprisonment on the lead burglary charge but ultimately sentenced Mr Hough to six months’ community detention (the maximum allowed), 120 hours’ community work and 12 months’ supervision. Judge Hobbs made it clear to Mr Hough that if he did not comply with the sentence, or reoffended, he would go to jail.

[4] In March 2016 the Community Probation Service made an application to cancel and substitute the remainder of the community detention service. It appears that that was because the address was no longer suitable.

[5] In April 2016 Mr Hough was charged with breaching his community work sentence. At this stage, 81 of the 120 hours imposed was outstanding.

[6] Judge Hobbs’ handwritten note on the application to cancel and substitute the community detention sentence records that he cancelled the community detention sentence on 23 May 2016. His note also states “no substitute”.

Later offending

[7] On 11 August 2016 Mr Hough went onto property belonging to Mr Kevin Angus and uplifted some copper spouting from the yard. On 12 August he returned to the yard but did not take any further spouting. He was recorded on CCTV on both occasions.

[8] On 31 August he was stopped at a routine traffic stop and arrested for the burglary. He returned to his car and attempted to drive away. Police found a small amount of cannabis leaf and two empty syringes in the vehicle. These events gave rise to one charge each of burglary, unlawfully being in an enclosed yard, possession of a syringe and possession of cannabis, and two charges of resisting arrest.

[9] By that date (31 August) only 31 of the 120 hours community work sentence were outstanding.…

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.

Keep reading for free

Create a free CaseChat account to read Hough v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 93
Decision Date: 8 February 2017

CaseChat Overview and Summary

In Hough v New Zealand Police, the appellant, Terance James Hough, was appealing against the sentence imposed by Judge Black for a series of offences committed in 2015 and 2016. The court was tasked with determining whether the sentence of 10 months' imprisonment imposed by Judge Black for the earlier tranche of offences was appropriate, given that it was a substitution for a previously imposed sentence of community work and supervision. The primary legal issue revolved around the court's obligation to take into account the portion of the original sentence that remained unserved at the time of the resentencing order, as mandated by the Sentencing Act 2002.

The court found that Judge Black had erred in calculating the discount for the early guilty plea and had also misapplied the statutory requirement to consider the unserved portion of the original sentence. The court held that the substituted sentence of 10 months' imprisonment was manifestly excessive, as it failed to adequately account for the substantial amount of community service and supervision Hough had already completed. The court emphasised the importance of proportionality and the need to avoid sanctioning Hough for any breach of the earlier sentence, as he had not completed his original sentence due to being denied bail in relation to later charges.

Consequently, the appeal was allowed, and the substituted sentence of 10 months' imprisonment was quashed. The court substituted a sentence of two months' imprisonment for the earlier tranche of offences, while the sentence of nine months' imprisonment for the later offences remained unchanged.

Orders