M v Police - [2022] NZHC 796

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2022-416-4

[2022] NZHC 796

UNDER the Criminal Procedure Act 2011

IN THE MATTER OF

an appeal against sentence

BETWEEN

M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (by Microsoft Teams): 12 April 2022

Counsel:

B Munro for the Appellant

M Mitchell for the Respondent

Judgment:

14 April 2022

JUDGMENT OF GWYN J

Solicitors:
Crown Solicitors, Gisborne Woodward Chrisp, Gisborne

M v NEW ZEALAND POLICE [2022] NZHC 796 [14 April 2022]

Summary

[1] On 15 February 2022,1 M was sentenced by Judge Bolstad in the Wairoa District Court to six months’ community detention and 15 months’ intensive supervision, after pleading guilty to one representative charge of indecent assault;2 one charge of assault in a family relationship;3 and one charge of driving whilst disqualified.4

[2]On 4 March 2022, M filed an appeal against sentence.

Facts

Indecent assault

[3] The representative charge of indecent assault arises from offending which took place on 9 February 2016 against the appellant’s niece. At the time, the victim was 17 years of age and residing at the same location as the appellant.

[4] The offending involved the appellant following the victim into the bathroom, where she was partly dressed, and touching and kissing the victim’s breast. The activity lasted for about a minute, after which time the appellant apologised and left the bathroom.

Assault in family relationship

[5] The victim in relation to this charge was the appellant’s partner of seven years. There have previously been eight family harm incidents reported to the Police between the victim and the appellant.

[6] The present offending took place on 25 April 2021 and involved the defendant grabbing the victim’s hair and pulling it backwards as she was driving and as the appellant was seated behind her. The victim then stopped the vehicle. After exiting

1      Police v M [2022] NZDC 5313.
2      Crimes Act 1961, s 135 carries a maximum penalty of seven years’ imprisonment.
3      Crimes Act, s 194A carries a maximum penalty of two years’ imprisonment.
4      Land Transport Act 1998, s 32(1)(a) and 32(3) carries a maximum penalty of three months’ imprisonment or a fine of $4,500; and the Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.

the vehicle, the appellant continued to yell at the victim and spat at her face. The offending stopped when a passer-by urged the defendant to stop and took the victim to safety in their vehicle.

[7]No visible injuries were sustained by the victim.

Driving whilst disqualified

[8] The appellant was subject to a driving disqualification of six months beginning 21 November 2020. On 14 March 2021,…

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: [2022] NZHC 796
Decision Date: 14 April 2022

CaseChat Overview and Summary

M appeals against his sentence of six months’ community detention and 15 months’ intensive supervision, imposed by the Wairoa District Court. The District Court sentenced M after he pleaded guilty to one representative charge of indecent assault, one charge of assault in a family relationship, and one charge of driving whilst disqualified. The Court of Appeal allowed M’s appeal against sentence and substituted a sentence of three months’ community detention and a period of 15 months’ intensive supervision. M appeals on the grounds that the sentence was manifestly excessive. He does not take issue with the starting point, the uplift for the assault or the discounts applied, but submits that the uplift of eight months for the driving whilst disqualified charge was in error as the charge carries a maximum penalty of three months’ imprisonment. He also submits that having reached the end point of nine and a half months’ imprisonment, the conversion to six months’ community detention and 15 months’ intensive supervision was excessive. The Court found that there was a material error in the uplift given for the driving whilst disqualified charge which must be corrected on appeal. The remaining parts of the sentence were appropriate and carefully considered, and therefore, warrant deference. Accordingly, the Court will not disturb the starting point, discounts or the uplift for the assault charge and deal only with the error. That results in an amended end sentence of five months’ imprisonment. The Court found that there was no error in the length of community detention and will not reduce it. However, to reflect the amended lower end sentence of five months’ imprisonment and the time M has spent subject to restrictive bail conditions, a reduction in the sentence of community detention of three months is warranted. The Court substituted a sentence of three months’ community detention and a period of 15 months’ intensive supervision.

Orders