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Jonathan v Police

Jonathan v Police

Case [2019] NZHC 1115 21 May 2019

Appeal

Sentencing

Totality

Breach of Community Detention

Re-sentencing

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-39

CRI-2019-409-50 [2019] NZHC 1115

BETWEEN
SAMANTHA LEE JONATHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 May 2019

Appearances:

A McKenzie for Appellant K Courteney for Respondent

Judgment:

21 May 2019

JUDGMENT OF MANDER J

Introduction

[1] The appellant, Samantha Jonathan, appeals two sentences imposed by the District Court. The first concerned two charges of driving while disqualified, being a third or subsequent offence, and a breach of community detention. Ms Jonathan was also for resentencing as the result of her failure to complete a sentence of community work. Judge Farish imposed a sentence of 16 months’ imprisonment. The second sentencing concerned a charge of possession of methamphetamine, for which Judge Couch imposed a further two months’ imprisonment. The appellant appeals these sentences on the basis they were manifestly excessive.

JONATHAN v NEW ZEALAND POLICE [2019] NZHC 1115 [21 May 2019]

Facts

[2] The first charge of driving while disqualified (third or subsequent) arose on 21 June 2018. The appellant was followed by police. She was pulled over but fled the vehicle. She was located a short distance away.

[3] The second disqualified driving charge occurred on 6 November 2018. The appellant was advised by the police that she had to remove her belongings from an address they had been called to, and so she elected to drive. She was subsequently stopped by police, who also discovered 4.1 g of methamphetamine in the appellant’s bag. This lead to the charge of possession for which the appellant was sentenced by Judge Couch.

[4] The appellant was also convicted for breaching community detention and failing to complete a sentence of community work. These arose from sentences imposed in 2018. The appellant breached her community detention conditions by being late for her curfew on 2 June 2018. She also did not complete her 200 hours of community work, which the appellant sought to explain was because of medical reasons.

District Court decisions

Judge Farish’s sentence

[5] Judge Farish considered the most serious offences to be the appellant’s sixth and seventh charges of driving whilst disqualified. She adopted a starting point of 12 months’ imprisonment for the more serious of the two offences, and uplifted it by four months for the other. The Judge found the appellant’s breach of community detention was serious. She added two months onto the starting point. A 20 per cent discount was then applied for the guilty pleas. This brought the sentence down to 14 months.

[6] Judge Farish then turned to the re-sentencing exercise. The Judge noted that the appellant had submitted that her breach was due to medical reasons, and while not entirely convinced by that, Judge Farish accepted there was a “lot going on” for the appellant at that time. Taking a “very gentle approach”, she added another two

months. This made the effective end sentence 16 months’ imprisonment. The appellant was further disqualified from driving for 12…

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 Jonathan v Police

Details

AGLC: Jonathan v Police [2019] NZHC 1115
Case: [2019] NZHC 1115
Decision Date: 21 May 2019

CaseChat Overview and Summary

Samantha Jonathan appealed against two sentences imposed by the District Court, arguing they were manifestly excessive. The first concerned two charges of driving while disqualified, being a third or subsequent offence, and a breach of community detention. The appellant was also for resentencing as the result of her failure to complete a sentence of community work. Judge Farish imposed a sentence of 16 months’ imprisonment. The second sentencing concerned a charge of possession of methamphetamine, for which Judge Couch imposed a further two months’ imprisonment. The appellant appealed these sentences on the basis they were manifestly excessive.

The High Court considered whether the sentences were manifestly excessive. The Court considered the starting point of 12 months’ imprisonment for the disqualified driving charge and the four month uplift for the second charge. The Court found this to be within range. The Court also considered the two month uplift for the breach of curfew and the further two months imposed in re-sentencing for breach of community work. The Court found that, while perhaps stern, the sentences were within the available range. The Court considered the two month sentence imposed for possession of methamphetamine and concluded that the overall effective sentence of 16 months was not manifestly excessive. The appeal was dismissed.

The final orders were that the appeal was dismissed.

Orders