Legal Research
Cases
Majury v Police

Majury v Police

Case [2019] NZHC 3427 19 December 2019

Aggravated & Exemplary Damages

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-374

[2019] NZHC 3427

BETWEEN
CHRISTOPHER MAJURY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 December 2019

Appearances:

S Kimberley for the Appellant

B Charmley for the New Zealand Police

Judgment:

19 December 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 December 2019 at 3.30 pm Registrar/Deputy Registrar
Date:

MAJURY v NEW ZEALAND POLICE [2019] NZHC 3427 [19 December 2019]

[1] On 22 July 2019, the appellant, Christopher Majury, was sentenced to 22 months’ imprisonment in the District Court1 in relation to two charges of breach of a protection order2 and two charges of breach of conditions of intensive supervision.3

[2] Mr Majury now appeals that sentence on the basis that there was an error in the sentence imposed on conviction, and a different sentence should be imposed, as:

(a)the sentence was manifestly excessive because:

(i)the starting point was too high, and

(ii)leave to apply for home detention was denied; and

(b)the sentencing Judge erred in imposing a special release condition that Mr Majury submit to GPS monitoring.

[3] It is well established that an appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.4 In any other case, the appeal must be dismissed.5 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.6 That is to be determined by reference to the final sentence, not the route adopted to reach it.7 How the sentence was structured is not material.8

Background facts

[4]Mr Majury is related to the victim.

1      Police v Majury [2019] NZDC 14362.
2      Domestic Violence Act 1995, ss 19(2)(b), 49(1)(b) and 49(3). Maximum penalty of three years’ imprisonment.
3      Sentencing Act 2002, s 70A. Maximum penalty of six months’ imprisonment or fine of $1,500.
4      Criminal Procedure Act 2011, s 250(2).
5      Section 250(3).
6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
7      Ripia v R [2011] NZCA 101 at [15].
8      Mita v R [2012] NZCA 137.

[5] On 12 January 2016, a temporary protection order was issued for the victim, against Mr Majury. A final protection order was made on 13 April 2016.

[6] On 9 September 2016, he was convicted of two charges of criminal harassment against the victim from the period 28 May 2015 to 7 January 2016. He was sentenced to 15 months’ imprisonment.

[7] On 11 December 2018, Mr Majury was found guilty of breach of a protection order by messaging the victim shortly after being released from prison (on 6 October 2016). He was sentenced to 18 months’ intensive supervision, together with judicial monitoring undertaken by Judge Earwaker.

[8] At the time of the current offending, Mr Majury was subject to both the protection…

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 Majury v Police

Details

AGLC: Majury v Police [2019] NZHC 3427
Case: [2019] NZHC 3427
Decision Date: 19 December 2019

CaseChat Overview and Summary

Christopher Majury appeals the sentence of 22 months' imprisonment imposed on him by the District Court for multiple breaches of a protection order and conditions of intensive supervision. The appeal contends that the sentence was manifestly excessive and that the Judge erred in imposing a GPS monitoring condition as part of the special release conditions. The starting point for the sentence was set at 18 months, which the appellant argues was too high. The appellant also argues that the Judge should have granted leave to apply for home detention instead of imprisonment. Lastly, the appellant challenges the appropriateness of the GPS monitoring condition, both in terms of the statutory framework and its effectiveness in reducing the risk of reoffending. The Court found that the starting point was indeed too high, leading to a manifestly excessive sentence. The Court also found that the Judge did not err in declining to grant leave to apply for home detention, as the persistent nature of the offending and the appellant's refusal to accept responsibility justified the sentence of imprisonment. Finally, the Court determined that the GPS monitoring condition was not warranted under the statutory framework and did not effectively address the risk of reoffending. Consequently, the appeal is allowed in part. The sentence is reduced to 16 months' imprisonment, and the GPS monitoring condition is set aside. The remainder of the sentence, including the special release conditions, is confirmed.

Orders