Jury v Police - [2015] NZHC 2587

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-37 [2015] NZHC 2587

IN THE MATTER of an appeal against sentence

BETWEEN

DESI LEE JURY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2015

Appearances:

E J Forster for the Appellant
MJM Mitchell for the Respondent

Judgment:

20 October 2015

ORAL JUDGMENT OF MUIR J

Counsel:
E J Forster, Barrister, Hastings

Solicitors:
MJM Mitchell, Crown Solicitors, Napier

JURY v NEW ZEALAND POLICE [2015] NZHC 2587 [20 October 2015]

[1] Mr Jury pleaded guilty to and was sentenced to three months’ imprisonment for one charge of doing an indecent act with intent to offend contrary to s 126 of the Crimes Act 1961. The sentence was imposed cumulatively on a five month term of imprisonment which Mr Jury is currently serving on one charge each of contravention of a protection order and male assaults female. He was sentenced in relation to those charges on 5 August 2015 which is one day earlier than the events which gave rise to the charges under s 126.

Background facts

[2] On 4 August 2015 Mr Jury was being interviewed by his lawyer who is the victim. At the time he was in custody in relation to the charges of male assaults female and breach of the protection order. The victim and Mr Jury were separated by a pane of glass. The victim was reading a letter Mr Jury had written for the Court in relation to those earlier charges. When she looked up she observed that Mr Jury had his hands inside his trousers and he then began to masturbate while watching the victim. He stood up from the chair and continued masturbating. The victim stopped reading the letter but was instructed by Mr Jury to continue to the next page. Mr Jury continued with the activity described above and shortly after the victim ended the visit. The victim stated that she was shocked and disgusted by Mr Jury’s acts and she indeed took some time to process it.

[3] The charges in relation to which the victim was visiting Mr Jury and on which he is currently serving his five month sentence arise out of events on 26 June
2015. On that date Mr Jury was with his partner of 19 years in their home. Mr Jury accused his partner of taking $200 which she denied repeatedly. That enraged Mr Jury and he punched the victim on the left side of her face. The victim began to cry and scream out for assistance. Mr Jury told her to “shut her mouth”. The victim sustained bruising to her left eye. She reported the incident two days later. Mr Jury was located by the Police on 2 August. The sentencing notes on those charges have not been made available to the Court.

[4] Mr Jury has a lengthy criminal history with, regrettably, multiple offences for male assaults female, failure to comply with Court orders and conditions, various

dishonesty offences, obstructing or perverting the course…

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: [2015] NZHC 2587
Decision Date: 20 October 2015

CaseChat Overview and Summary

Mr Jury appealed against the sentence imposed by the District Court for doing an indecent act with intent to offend, while in custody. He contended that the Judge should have adjusted the end sentence to reflect principles of totality. The Crown opposed the appeal and submitted that the cumulative sentence imposed by the Judge was not wholly out of proportion to the gravity of the offending. The High Court dismissed the appeal, finding that the total amount of time Mr Jury has to serve is not out of proportion to his overall criminality, and if he were to be sentenced on both sets of charges on the same day, a similar total sentence would have been imposed.

The court examined the appeal under s 250 of the Criminal Procedure Act 2011, confirming that the appeal must proceed on an error principle. The court held that the principle of totality was not violated, as the total term of imprisonment Mr Jury must face was not disproportionate to the overall criminality. The court found that the sentence for the indecent act charge was similar to that adopted by the District Court, and that the sentence for the male assaults female charge and breach of a protection order was lenient considering Mr Jury’s lengthy history of domestic violence against the same victim. The court considered that a cumulative sentence was warranted in the circumstances of the offending.

Orders