Lewis v Police - [2021] NZHC 3086

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-400

[2021] NZHC 3086

BETWEEN
KYLIE LEWIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 October 2021

Counsel:

G D Packer for Appellant P McNabb for Respondent

Judgment:

16 November 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 16 November 2021 at 1 pm

Registrar/Deputy Registrar

Solicitors/Counsel:
G D Packer (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

LEWIS v POLICE [2021] NZHC 3086 [16 November 2021]

Introduction

[1] Ms Lewis appeals the sentence of 10 months’ supervision imposed on her by Judge KJ Glubb on 10 August 2021 on charges of assault and intentional damage.1

[2] Ms Lewis wanted to be discharged without conviction. Judge Glubb declined to do that. Ms Lewis’s submission is that had the Judge permitted a restorative justice conference and had she been able to present her counsellor’s report to the Court, then a discharge without conviction would have been available.

Background

[3] Ms Lewis was due to stand trial on 10 August 2021. On the morning of the trial she accepted a charge bargain and entered pleas of guilty.

[4] Ms Lewis wanted to attend restorative justice. Her counsel applied for an adjournment of sentencing to enable this to be canvassed with the victim. But Judge Glubb wanted to sentence immediately. The Judge in his sentencing notes acknowledged that Ms Lewis was willing to participate in restorative justice and said:

[13] … But that has not been possible because the matter has only just resolved, and I am going to deal with it today. But nonetheless, you would be willing to do so in the future.

Judge Glubb’s sentence

[5]The Judge first set out the facts of the case:

[2] The facts are that you are the biological mother of [A]. At the time of this incident, you were 31 years of age and your daughter [A], was six. She was at that point with Oranga Tamariki personnel and was with an Oranga Tamariki support worker at the time. On 21 November 2019, the victim was at the Oranga Tamariki Westgate offices for a meeting. You arrived at the offices unannounced and stormed into the room where your daughter was waiting.

[3]The victim in this matter, she entered the room to intervene between

[A] and you, and to protect [A] from you. You became angry at this, trying to reach for your daughter before grabbing hold of the victim and punching her in the face. The victim was able to flee from the room before you picked up two mugs and threw them at the wall, causing them to smash throughout the

1 Police v Lewis [2021] NZDC 17777.

room. The mugs were owned by Oranga Tamariki. You then left the Oranga Tamariki Westgate offices without fu1ther incident. The victim suffered soreness to her face from where she was punched and soreness to her arm from being grabbed.

[6] The Judge considered…

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.

Keep reading for free

Create a free CaseChat account to read Lewis v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 3086
Decision Date: 16 November 2021

CaseChat Overview and Summary

The appeal in Lewis v Police was brought by Ms Lewis against the sentence of 10 months’ supervision imposed by Judge KJ Glubb on 10 August 2021, following Ms Lewis’s guilty pleas to charges of assault and intentional damage. Ms Lewis sought to be discharged without conviction, a request which was declined by Judge Glubb. Ms Lewis argued on appeal that had the court permitted a restorative justice conference, and had she been able to present her counsellor’s report to the court, a discharge without conviction would have been available. The central legal issue for the Court was whether a restorative justice process could have affected Ms Lewis’s sentence to the point where the appeal should be allowed. The Court held that it could not be said that the direct and indirect consequences of these convictions for Ms Lewis would be out of all proportion to the gravity of her offending, even assuming that had the restorative justice process been followed it would have been favourable for Ms Lewis. The appeal was dismissed.

Orders