Irvine v Police - [2017] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000047 [2017] NZHC 3085

BETWEEN
CHRISTOPHER WILLIAM IRVINE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 December 2017

Appearances:

J U Mooney for the Appellant
R W Donnelly for the Respondent

Judgment:

12 December 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant was charged with, and pleaded guilty to two breaches of a protection order. He was sentenced to eight months’ imprisonment.1 He now appeals against his sentence, primarily on the basis that it was manifestly excessive.

Background

[2] The appellant and his victim had previously been in an on and off relationship for approximately three years. On 20 July 2017, a final protection order was issued in the Invercargill Court requiring the appellant not to have contact with the victim. He
was also named on a trespass notice in relation to the victim’s home address. However,

1 Police v Irvine [2017] NZDC 23869.

IRVINE v NEW ZEALAND POLICE [2017] NZHC 3085 [12 December 2017]

between 4.39 pm on Monday, 24 July 2017 and 3.27 pm Wednesday, 26 July 2017, the victim received 23 telephone calls from the defendant. She answered the third telephone call and told the defendant to leave her alone and stop ringing her, and the remaining telephone calls were dismissed or immediately terminated by the victim.

[3] At about 8.30 pm on 26 July 2017, the defendant went to the victim’s home, where he banged multiple times on the lounge window of the house before leaving the property.

District Court decision

[4] The District Court Judge began by reiterating that a breach of a protection order was considered a serious offence, and that Parliament’s recent decision to increase the maximum sentence from two years to three years reflected the concern about this kind of offending.

[5] After outlining the facts of the offending, and some earlier related offending against the same complainant, including speaking threateningly to her, the Judge adopted a starting point of 10 months’ imprisonment. In setting this he referred to the effect of his offending on the victim, his concerns for her safety, and the principles of denunciation and deterrence.

[6] The only credit he considered he could give was for the guilty pleas which reduced the sentence to seven and a half months. To that the Judge added a further two weeks to take into account remission of a substantial amount of outstanding fines owing by the appellant. He also cancelled the appellant’s outstanding sentence of community work, resulting in an end sentence of eight months’ imprisonment with standard release conditions.

Principles on appeal

[7] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different

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 Irvine v Police

Details

AGLC: Irvine v Police [2017] NZHC 3085
Case: [2017] NZHC 3085
Decision Date: 12 December 2017

CaseChat Overview and Summary

The appellant, Mr Irvine, appeals against his sentence for two breaches of a protection order, arguing that the sentence of eight months’ imprisonment is manifestly excessive. The District Court had found that the appellant’s offending was serious, given the recent increase in the maximum penalty for breach of a protection order. The appellant had breached the order within days of its imposition, making multiple harassing phone calls to the victim and physically intruding onto her property. The appellant argues that the starting point of 10 months was too high, and that the offending was not as serious as the District Court found. The court noted that the starting point was at the upper limit of the appropriate range, but was justified given the seriousness of the offending. The appellant also argues that the District Court erred in taking into account an old victim impact statement, and in not giving credit for his willingness to participate in restorative justice. The court found that there was no obligation to show the victim impact statement to the defendant, and that the appellant’s willingness to participate in restorative justice was not genuine, given his lack of understanding of the impact of his offending on the victim.

The court dismissed the appeal, finding that the sentence was not manifestly excessive and that there was no material error justifying an appeal. The appeal is dismissed.

Orders