M v Police - [2018] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000160

[2018] NZHC 1230

BETWEEN
M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 March 2018 and 24 May 2018

Appearances:

N R Rout for the Appellant

C J Bernhardt for the Crown on 22 March 2018; and S Bicknell Young for the Crown on 24 May 2018

Judgment:

29 May 2018

JUDGMENT OF DUNNINGHAM J

[1] On 3 October 2017, the appellant was sentenced to two years and two months’ imprisonment for a variety of charges.1 He now appeals on the basis that the sentence is manifestly excessive because the Judge double counted a factor. The appellant also wishes to introduce new evidence related to his health which, he submits, justifies an additional discount. A further issue was raised when this matter was first called on 22 February 2018. That was whether the appellant should also receive a discount for assistance he could give the Police on an unrelated criminal matter. The hearing of the appeal was adjourned to allow the respondent to consider the merits of this assertion.

1 The charges were: two counts of burglary, theft from a car, driving while suspended, unlawful possession of explosives, possession of utensils, breaching the Medicine Act 1968, breaching community work and two counts of breaching intensive supervision.

M v NEW ZEALAND POLICE [2018] NZHC 1230 [29 May 2018]

[2] If he is successful in reducing his sentence to a short term of imprisonment on any of these grounds, the appellant seeks leave to apply for home detention.

[3] Leave is required to bring the appeal as it was filed shortly after the time limit for filing the appeal. However, the circumstances of the late filing are fully explained by counsel for the appellant, Mr Rout. I accept that there is no prejudice to the respondent and that leave should be granted.

Background facts

[4] In July 2016, the appellant was sentenced to nine months’ intensive supervision for obtaining by deception. Then, in November and December 2016, he was sentenced to community work. He failed to comply with those sentences and was charged with two breaches of intensive supervision and one breach of community work. The appellant was charged for two failures to report in March 2017. In June 2017, the appellant failed to report for community work as directed.

[5] In early July 2017, the appellant engaged in a series of offences. He entered an enclosed yard and took a moped valued at approximately $2,000. The appellant entered a dwelling house via an insecure door and took various items valued at over
$1,500. In the early hours of the morning, the appellant broke a car window, entered the vehicle and took clothing and personal items valued at $1,100.

[6] The appellant was found driving a stolen vehicle while suspended. When stopped by police he was found in unlawful possession of ammunition, utensils, and non-prescribed medicine.

District Court decision

[7] The Judge considered that…

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 [2018] NZHC 1230
Case: [2018] NZHC 1230
Decision Date: 29 May 2018

CaseChat Overview and Summary

M appeals against his sentence of two years and two months’ imprisonment. He submits that the sentence is manifestly excessive because the Judge double counted a factor, that the new evidence regarding his health justifies an additional discount, and that he should receive a discount for assistance he could give the Police on an unrelated criminal matter. The court was required to decide whether the sentence was manifestly excessive, whether the new evidence should be accepted and affect the sentencing exercise, and whether there should be a discount for assistance to authorities.

The court accepted there was some uncertainty as to whether the Judge double counted the fact that an aggravating feature of the offending was that the burglaries were of dwelling houses. However, the court found that the end starting point reached of 21 months was well within range for this type of offending. The court also found that the new evidence on the appellant’s health did not satisfactorily address what treatment he was able to receive in prison for his diagnosed medical condition, nor what consequences would result if the treatment his family wished to source through a “Buyers Club” was not received. The court further found that the information provided by the appellant was not of sufficient utility to justify a reduction.

The appeal was dismissed.

The court made an order suppressing all details of the information given to the police by the appellant and suppressing the appellant’s name and identifying details. This judgment has been anonymised to reflect those orders.

Orders