Love v The the King - [2022] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA416/2022
[2022] NZCA 614

BETWEEN	JAMIE NGATATA LOVE Appellant
AND	THE KING Respondent

Hearing:	2 November 2022
Court:	French, Thomas and Mallon JJ
Counsel:	D A Ewen for Appellant C A Brook for Respondent
Judgment:	7 December 2022 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of 10 years’ imprisonment on the robbery charge is quashed and a sentence of 18 months’ imprisonment is substituted.
CThe sentences for the other charges are unaffected.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

The appellant pleaded guilty to and was convicted of robbery,[1] demanding with intent to steal[2] and wilful damage.[3] The robbery was a “third strike” offence under the now repealed “three strikes” sentencing regime.[4]
[1]Crimes Act 1961, s 234.
[2]Section 239(2).
[3]Summary Offences Act 1981, s 11(1)(a).
[4]Sentencing Act 2002, s 86D, repealed by Three Strikes Legislation Repeal Act 2022, s 5.
In the High Court, Mander J sentenced the appellant to 10 years’ imprisonment for the robbery, the maximum sentence for that offence, taking the view that he had no discretion to impose a lesser sentence under the three strikes regime.[5] Were it not for that regime, he would have sentenced the appellant to 18 months’ imprisonment rather than the 10 year maximum.[6]
[5]R v Love [2020] NZHC 1215 at [15].
[6]At [29].
The sentencing took place before the Supreme Court’s judgment in Fitzgerald v R.[7]The Court held that, where imposing the maximum sentence under the three strikes regime would breach the right not to be subjected to disproportionately severe punishment, the offender should be sentenced in accordance with ordinary principles.[8]
[7]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
[8]New Zealand Bill of Rights Act 1990, s 9. Fitzgerald v R, above n 5, at [137]–[139] per Winkelmann CJ, [231] per O’Regan and Arnold JJ and [252] per Glazebrook J. Winkelmann CJ also considered that s 86D(2) of the Sentencing Act adds a sentencing principle that recidivism by those caught by the regime is to be viewed as very serious and worthy of a stern sentencing response.
Following that judgment, the appellant appeals his sentence. He says the 10 year sentence was grossly disproportionate punishment so as to breach s 9 of the New Zealand Bill of Rights Act 1990 and should be quashed. He says it should either be replaced with a sentence of 18 months’ imprisonment or an order could be made under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Leave to appeal has been granted.[9]

Background

The offending

[9]Love v R CA416/2002, 23 September 2022 (Minute of Collins J).

The demanding with intent to steal charge was for an incident on the evening of 15 August 2019. The appellant approached and sat next to a person who was sitting in the gaming lounge of a bar and demanded money from…

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 Love v The the King

Details

AGLC: Love v The the King [2022] NZCA 614
Case: [2022] NZCA 614
Decision Date: 7 December 2022 at 2.30 pm

CaseChat Overview and Summary

The case of Love v The King, heard in the Court of Appeal of New Zealand, involves Jamie Ngatata Love, who appealed against his sentence. Love was convicted of robbery, demanding with intent to steal, and wilful damage, and was sentenced to 10 years' imprisonment for the robbery charge, the maximum sentence allowable under the now-repealed "three strikes" sentencing regime. The appeal was based on the argument that the 10-year sentence was grossly disproportionate, breaching section 9 of the New Zealand Bill of Rights Act 1990. The central legal issue was whether the 10-year sentence constituted grossly disproportionate punishment contrary to the rights affirmed in the Act. The court considered that the sentence imposed was significantly more severe than the 18-month sentence that would have been imposed in the absence of the "three strikes" regime. The disparity in sentence length, coupled with the relatively low-level nature of the offending and Love's personal circumstances, led the court to conclude that the 10-year sentence was indeed grossly disproportionate.

The Court of Appeal allowed the appeal, quashing the 10-year sentence and substituting it with a sentence of 18 months' imprisonment for the robbery charge. The sentences for the other charges remained unaffected. The court emphasised that while Love's history of reoffending was significant, his crimes were generally of a low level and did not involve weapons or physical harm. The court also noted that making an order under section 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 was not appropriate, as Love's mental health care should be managed under the civil regime rather than the criminal one. The court's decision was grounded in the principle that the punishment must not be disproportionately severe, in line with the New Zealand Bill of Rights Act 1990 and the Supreme Court's guidance in Fitzgerald v R.

Orders