Martin v Police - [2016] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-10 [2016] NZHC 886

BETWEEN
SHANNON MARTIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing(AVL): 3 May 2016

Counsel:

E J Forster for Appellant
M J Blaschke for Respondent

Judgment:

5 May 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] On 28 August 2015, Mr Martin was sentenced by Judge Ross in the District

Court at Palmerston North on 20 charges to a total of two years, one month and

21 days’ imprisonment. He appeals against that sentence on the ground that there should have been a reduction for totality. This failure, it is argued, meant the sentence imposed was manifestly excessive.

District Court decision

[2] The Judge bundled the offending into groups either of type or common incident and sentenced on that basis as follows.

[3] For the most serious charges arising from events of 15 February 2015 (unlawful taking of car, possession of shotgun, possession of ammunition, driving while forbidden, dangerous driving and burglary), the Judge took possession of the shotgun as the lead offence, with a starting point of 12 months. This was uplifted to
24 months for all other offending. Two months were added for the fact that the

MARTIN v NEW ZEALAND POLICE [2016] NZHC 886 [5 May 2016]

appellant was on sentence and on bail at the time. Twenty-five per cent was then deducted for the guilty plea. This resulted in a sentence of one year and seven months. This sentence was imposed for the possession of a firearm, with all other lesser sentences imposed concurrently.

[4] The second set were loosely described by the Judge as Justice System breach charges. Mr Martin was convicted and discharged for two counts of breach of community work and breach of release conditions. For using a cellphone without permission at community work, and a related count of breach of release conditions, Mr Martin was sentenced to one month for each, concurrent inter se but cumulative on the rest of the sentence.

[5] In relation to a dangerous driving incident on 15 October 2014 and counts related to that incident, the Judge imposed three months for the possession of utensils charge, and, concurrently, one month for possession of cannabis, one for refusing to undergo an impairment test, two for dangerous driving, and one for possession of a knife. The lead sentence of three months was cumulative on the rest of the sentence but all 15 October 2014 sentences were concurrent inter se.

[6] For theft of a meal, the Judge imposed a further one month, and $40 reparation.

[7] For making a false 111 call, a further one month.1

[8] For having a cellphone as a prisoner, the Judge adopted a starting point of one month, which was reduced to 21 days for the guilty plea.

1 Judge Ross does not specifically impose a one month sentence with respect to this charge in his Sentencing Remarks but in the record of hearing for the same date (28 August 2015), a…

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: [2016] NZHC 886
Decision Date: 5 May 2016

CaseChat Overview and Summary

Shannon Martin appeals against his sentence imposed by Judge Ross in the District Court at Palmerston North on 20 charges, arguing that the sentence was manifestly excessive due to a failure to consider the principle of totality. The District Court Judge imposed sentences on groups of offences of either type or common incident, bundling the offending into categories and applying cumulative sentences. The appellant's counsel submits that the approach taken by the Judge was incorrect, as the principle of totality requires consideration of the overall sentence in relation to the offender's culpability. The Crown submits that the Judge's approach was correct, particularly as the offending occurred while the appellant was either on sentence or on bail, and that the end result was appropriate. The High Court found that the Judge's approach was orthodox, and while the principle of totality should have been considered, the end result was not manifestly excessive. The appeal was dismissed.

The key legal issue in this case was whether the District Court Judge correctly applied the principle of totality in sentencing the appellant. The principle of totality requires that the overall sentence reflect the offender's overall culpability in respect of the entire sentencing exercise, and any failure to consider totality must be material in the sense that it produced a manifestly excessive result. The High Court found that while the principle of totality should have been considered by the Judge, the end result was not manifestly excessive, and the appeal was dismissed. The Judge's approach of grouping the offending and applying cumulative sentences was correct, particularly as the offending occurred while the appellant was either on sentence or on bail. The end sentence of two years, one month and 21 days was not "wholly out of proportion to the gravity of the overall offending".

Orders