Houston v Police - [2013] NZHC 2266

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000014 [2013] NZHC 2266

ELIZABETH STEPHANIE HOUSTON

v

NEW ZEALAND POLICE

Hearing: 29 August 2013 and 2 September 2013 (by way of telephone conference)

Appearances:

A Stevens for the Intending Appellant
R P Bates for the Intended Respondent

Judgment:

2 September 2013

JUDGMENT OF PANCKHURST J (RE LEAVE TO APPEAL)

Introduction

[1] On 28 June 2013 I dismissed an appeal against a sentence of 25 and a half months imprisonment imposed in relation to four charges of dishonestly accessing a computer with intent to defraud (save for rounding the term down to 25 months).

[2] An application for leave to appeal was argued on 29 August 2013. Following submissions, and exchanges, Mrs Stevens sought a short time to take instructions and reformulate the proposed questions of law. The reformulated questions are:

(i) Having found the District Court Judge’s sentencing was based
on a wrong principle did the Judge in the High Court err in not approaching the sentencing de novo.

HOUSTON v NEW ZEALAND POLICE [2013] NZHC 2266 [2 September 2013]

(ii)Having decided to undertake his own evaluation of the offending, did the Judge err in not following the appropriate sentencing steps by selecting a starting point and then making allowances for personal aggravating and mitigating factors?

(iii)Did the Judge err in failing to allow a discount for remorse when he had found remorse to be present?

On 2 September 2013 these questions were the subject of a brief telephone hearing.

The arguments

[3] Mrs Stevens submitted that the three issues posed questions of law which were of general or public importance. She said that question (i) was based on Austin Nichols and Co Inc. v Stichting Lodestar1 and whether a Judge hearing a general appeal was required to conduct a de novo sentencing exercise, if a conclusion was reached that the sentencing was based on a long principle. On this basis Mrs Stevens maintained that the point raised was of general application, not
confined to this appellant.

[4] In relation to question (ii) counsel relied upon R v Taueki,2 in asserting there was an error in not conducting a full sentencing exercise once a re-evaluation on appeal was embarked upon. The third question is based upon s 9(2)(f) of the Sentencing Act 2002, and asserts a failure to tangibly recognise remorse when a basis to do so was found to exist.

[5] Mr Bates did not accept that any of the questions were of general or public importance, or for any other reason, justified a second appeal. His written submission was to the effect that although the District Court Judge erred in saying that remorse must be exceptional to warrant recognition, on appeal this mitigating factor received robust evaluation with the result that the appellant’s expressions of remorse, absent any substantial repayment of the money, did not justify recognition
over and above the allowance given for guilty pleas.

1 Austin Nichols and Co Inc. v Stichting Lodestar [2008]…

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: [2013] NZHC 2266
Decision Date: 2 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Houston v New Zealand Police involved the appellant, Elizabeth Stephanie Houston, appealing against a sentence imposed by the District Court. The appeal was dismissed by the High Court, but Houston sought leave to appeal the High Court's decision. The legal issues presented concerned whether the High Court erred in its approach to sentencing and whether it should have granted a discount for remorse. The court was asked to consider if the High Court should have conducted a de novo sentencing exercise, followed the appropriate sentencing steps, and recognised remorse as a mitigating factor.

The High Court found that the appeal did not warrant leave to proceed, as it did not establish grounds of general or public importance. Regarding the High Court's approach to sentencing, the court concluded that there was no requirement to conduct the sentencing exercise afresh, as the reassessment of the offending indicated that substantial sums were stolen and not repaid, which counted against any discount for remorse. The High Court's decision to not recognise remorse as a mitigating factor was also upheld, as the expressions of remorse were not matched by remorseful conduct.

In conclusion, the High Court denied the application for leave to appeal, affirming its previous decision. The court held that there were no errors in its approach to sentencing, and the grounds for appeal did not meet the threshold for leave to appeal. The court's reasoning was based on the absence of qualifying remorse, as the appellant had not taken meaningful steps to repay the stolen funds. The final orders of the court were to dismiss the application for leave to appeal.

Orders