M v Police - [2024] NZHC 2255

THE NAME IN THIS JUDGMENT HAS BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-145 CRI-2024-409-146

[2024] NZHC 2255

BETWEEN
M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 August 2024

Appearances:

E K Moore for Appellant

M W Fulton for Respondent

Judgment:

12 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 August 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

M v NEW ZEALAND POLICE [2024] NZHC 2255 [12 August 2024]

Introduction

[1] On 17 May 2024, the appellant, M, was sentenced to 27 months’ imprisonment in respect of two sets of offending.1 The first was for three charges committed on 5 November 2023:

(a)contravening a protection order;2

(b)assault on person in family relationship;3 and

(c)dangerous driving4 (the November offending).

[2] The second was a re-sentencing on a sentencing review of three charges for offending that occurred on 27 December 2022:

(a)contravening a protection order;5

(b)assault on person in family relationship;6

(c)assaults child7 (the December offending).

[3] M appeals on the basis that the end sentence was manifestly excessive because Judge McMeeken failed to make a totality adjustment in light of the separate starting points.

[4] M also seeks leave to advance two further grounds of appeal in relation to the re-sentencing. These are that:

1      Police v M [2024] NZDC 11280 at [39].
2      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a) — maximum penalty three years’ imprisonment.
3      Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
4      Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment and at least six months disqualification.
5      See above n 2.
6      See above n 3.
7      Crimes Act 1961 — s 194(a): maximum penalty two years’ imprisonment.

(a)The re-sentencing proceeded on an incorrect summary of facts and the starting point of 20 months’ imprisonment was too high; and

(b)the cumulative period of 10 months’ imprisonment imposed, in consideration of the original sentence and the six-month period of intensive supervision unserved, was disproportionate.

Factual background

[5] The victim in each tranche of the appellant’s offending is the appellant’s ex-partner (victim one or the victim). The appellant’s ex-partner’s child is also a victim in the December 2022 offending (victim two).

December 2022 offending

[6] On 27 December 2022, the appellant and the victims were at the Onuku Marae in Akaroa. At around 3 pm, an argument developed. The appellant became agitated and pushed his ex-partner in the chest area. That gave rise to a charge of assault on a person in a family relationship.

[7] Between 5 and 6 pm, the appellant and the two victims were in the upstairs area at the marae. Another argument broke out because the appellant did not want the victims to leave. The appellant closed the door and refused to let the victims out of the room. The appellant yelled at victim one threatening…

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 M v Police

Details

AGLC: M v Police [2024] NZHC 2255
Case: [2024] NZHC 2255
Decision Date: 12 August 2024

CaseChat Overview and Summary

M appeals against a sentence of 27 months’ imprisonment for two sets of offences against his ex-partner and her child. The first set of offences was committed on 5 November 2023, consisting of charges of contravening a protection order, assault on a person in a family relationship, and dangerous driving. The second set of offences was a re-sentencing of three charges for offences that occurred on 27 December 2022, consisting of contravening a protection order, assault on a person in a family relationship, and assaulting a child. The appeal grounds are that the end sentence was manifestly excessive because the sentencing judge failed to make a totality adjustment in light of the separate starting points and that the re-sentencing was on an incorrect summary of facts and was disproportionate. The court considered the grounds and found that there was no error in the sentence imposed. The incorrect summary of facts did not render the end sentence manifestly excessive because the sentence imposed was one month less than the starting point now advocated for. The re-sentencing was also proportionate to the unserved sentence because the judge had regard to the fact that M had served the equivalent of a year’s jail term and imposed 15 months’ intensive supervision and 100 hours of community work. The court also found that the end sentence was proportionate to the gravity of the overall offending and did not need adjustment on a totality basis.

The appeal is dismissed.

Orders