M v The the Queen - [2022] NZHC 582

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-0004

[2022] NZHC 582

BETWEEN
M

Appellant

AND

THE QUEEN

Respondent

Hearing: 22 March 2022

Appearances:

S L McColgan for Appellant B R Smith for Crown

Judgment:

25 March 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 March 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Pollett Legal Ltd, Crown Solicitor, Tauranga Counsel: S L McColgan, Auckland

M v R [2022] NZHC 582 [25 March 2022]

[1] The appellant, M, appeals against a sentence of four years, two months’ imprisonment imposed by Judge Bidois on 18 January 2022.1

[2] M contends his sentence was manifestly excessive, and in particular, that the Judge’s starting point on the family violence charges referred to below was excessive, that the Judge was influenced by falsehoods in the victim impact statement (“VIS”), and that he gave insufficient discounts for personal mitigating factors and time spent on EM bail.

[3] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5

Offending

[4] M pleaded guilty to 11 charges, which Judge Bidois broke down into three groups:

(a)Drugs: possession of methamphetamine for supply;6 supplying methamphetamine;7 possession of methamphetamine,8 possession of cannabis for supply,9 and possession of ecstasy.10

1      R v [M] [2022] NZDC 751.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R , above n 3, at [30]—[35].
5      Tutakangahau v R , above n 3, at [36].
6      Misuse of Drugs Act 1975, ss 6(1)(f) and (2): Maximum penalty life imprisonment.
7      Sections 6(1)(c) and (2): Maximum penalty life imprisonment.
8      Sections 7(1)(a) and (2): Maximum penalty six months’ imprisonment, or a $1000 fine.
9      Sections 6(1)(f) and (2): Maximum penalty eight years’ imprisonment.
10     Sections 7(1)(a) and (2): Maximum penalty three months’ imprisonment, or a $500 fine.

(b)Family violence: strangulation;11 injuring with intent to injure;12 assault with intent to injure;13 male assaults female;14 and a representative charge of breaching a protection order.15

(c)A representative charge of attempting to pervert the course of justice.16

[5] The Judge adopted a starting point of three years, three months’ imprisonment on the drug offending.

[6] On the family violence offending,…

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 The the Queen

Details

AGLC: M v The the Queen [2022] NZHC 582
Case: [2022] NZHC 582
Decision Date: 25 March 2022

CaseChat Overview and Summary

M appeals against a four years, two months’ imprisonment sentence imposed by Judge Bidois, arguing it was manifestly excessive. The court was required to decide whether the sentence imposed by Judge Bidois was manifestly excessive or wrong in principle. The appeal was allowed in part, varying M’s sentence from four years, two months’ imprisonment to three years, 10 months’ imprisonment. The court found that the sentence imposed by Judge Bidois was within range, but the discount for time spent on EM bail should have been greater. The court accepted the Crown’s submission that a six month reduction was appropriate, but the Judge only allowed two months. The court reduced the final sentence from the Judge’s 50 months’ imprisonment to 46 months and allowed M the additional four months. In all other respects, the sentence remained unchanged.

Orders