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Houston v R

Houston v R

Case [2013] NZCA 581 25 November 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA626/2013
[2013] NZCA 581

BETWEEN	ELIZABETH STEPHANIE HOUSTON Applicant
AND	THE QUEEN Respondent

Hearing:	13 November 2013
Court:	Wild, Simon France and Asher JJ
Counsel:	M A Stevens for Applicant K A L Bicknell for Respondent
Judgment:	25 November 2013 at 3 pm

JUDGMENT OF THE COURT

The application for special leave to appeal to this Court is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

This is an application under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court on three questions of law.[1] The application rather misconceives the role of a court dealing with an appeal against sentence. It could be viewed as an attempt to have this Court review the applicant’s sentence, after the High Court had dismissed an appeal.[2]
[1]An application made in the High Court for leave to appeal to this Court under s 144(2) was dismissed by Panckhurst J on 2 September 2013: Houston v NZ Police [2013] NZHC 2266 [Leave judgment]. Section 144(3) has since been repealed, but applies here because the informations against the applicant were laid before 1 July 2013. The current provisions are in pt 6, subpt 8, ss 297 and following of the Criminal Procedure Act 2011.
[2]Houston v New Zealand Police [2013] NZHC 1609 [High Court judgment].
The three questions of law the applicant seeks to have this Court answer 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?
(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?
In the District Court at Dunedin on 22 April this year Judge Coyle sentenced Ms Houston to two years, one month and 14 days imprisonment.[3] She had pleaded guilty to stealing $159,148 from her employers over a 20 month period.
[3]R v Houston DC Dunedin CRI-2013-012-477, 22 April 2013.
Of the three grounds on which Ms Houston appealed to the High Court against that sentence, we need only mention greed and remorse. Because “desperate need” was not the motivation for Ms Houston stealing the $159,148, Panckhurst J accepted that greed was “really an integral element of theft of the present kind”.[4] He questioned how far the inquiry into greed the District Court Judge had undertaken was sensible, or really necessary, in cases such as this. But he found it difficult to judge whether greed had influenced the starting point adopted by the Judge, and pointed out that Mrs Stevens did not challenge that starting point.
[4]High Court judgment, above n 2, at [16].
Panckhurst J also accepted that the District Court Judge had misdirected…

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 Houston v R

Details

AGLC: Houston v R [2013] NZCA 581
Case: [2013] NZCA 581
Decision Date: 25 November 2013 at 3 pm

CaseChat Overview and Summary

Elizabeth Stephanie Houston applied to the Court of Appeal of New Zealand for special leave to appeal against her sentence, which was imposed by the District Court at Dunedin. The Court of Appeal dismissed the application. The applicant appealed against her sentence in the High Court, which was also dismissed. The applicant sought special leave to appeal to the Court of Appeal on three questions of law. The questions related to the High Court's approach to the sentencing error made by the District Court. The Court of Appeal found that the questions misconceived the role of a court dealing with an appeal against sentence. The Court of Appeal held that the questions did not relate to the end sentence, but rather to the means by which the sentencing Judge arrived at the sentence. The Court of Appeal also found that the questions did not have general public importance. The application for special leave to appeal to the Court of Appeal was dismissed.

The applicant's appeal against sentence in the High Court was dismissed by Panckhurst J. The applicant sought special leave to appeal to the Court of Appeal on three questions of law. The questions related to the High Court's approach to the sentencing error made by the District Court. The Court of Appeal found that the questions misconceived the role of a court dealing with an appeal against sentence. The Court of Appeal held that the questions did not relate to the end sentence, but rather to the means by which the sentencing Judge arrived at the sentence. The Court of Appeal also found that the questions did not have general public importance. The application for special leave to appeal to the Court of Appeal was dismissed.

The Court of Appeal found that the questions misconceived the role of a court dealing with an appeal against sentence. The Court of Appeal held that the questions did not relate to the end sentence, but rather to the means by which the sentencing Judge arrived at the sentence. The Court of Appeal also found that the questions did not have general public importance. The application for special leave to appeal to the Court of Appeal was dismissed. The Court of Appeal also found that the questions were not apt to describe the reasoning process on appeal. The application for special leave to appeal to the Court of Appeal was dismissed.

Orders