Martin v Police - [2022] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000021

CRI-2022-488-000022 [2022] NZHC 856

BETWEEN
DEON MARTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 April 2022

Appearances:

J Scott for the Appellant

A Tupuola for the Respondent

Judgment:

28 April 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 28 April 2022 at 4 pm Registrar/Deputy Registrar

MARTIN v NEW ZEALAND POLICE [2022] NZHC 856 [28 April 2022]

Introduction

[1] Deon Martin was sentenced in the District Court at Whangārei by Judge P Rzepecky on 21 February 2022 to a term of imprisonment of 19 months.1 He was sentenced following guilty pleas on a raft of (primarily) dishonesty and driving offences. The charges fall within 6 different time periods. More particularly, those charges are:

(a)driving while disqualified, 3rd or subsequent,2

(b)dangerous driving,3

(c)failing to stop,4

(d)two charges of driving while forbidden,5

(e)theft between $500 and $1000,6

(f)three charges of theft under $500,7

(g)possession of utensil,8

(h)breach of community work,9 and

(i)failure to answer bail.10

1      New Zealand Police v Martin [2022] NZDC 3581.
2      Land Transport Act 1998, ss 32(1)(a) and 32(4) carrying a maximum penalty of two years’ imprisonment or a $6,000 fine.
3      Land Transport Act 1998, s 35(1)(b) carrying a maximum penalty of three months’ imprisonment or a $4,500 fine.
4      Land Transport Act 1998, ss 52(1)(a)(ii) and 114(2) carrying a maximum penalty of a $10,000 fine.
5      Land Transport Act 1998, ss 52(1)(a)(ii) and 113(2)(e) carrying a maximum penalty of a $10,000 fine.
6      Crimes Act 1961, ss 219 and 223(c) carrying a maximum penalty of one year’s imprisonment.
7      Crimes Act 1961, ss 219 and 223(d) carrying a maximum penalty of three months’ imprisonment.
8      Misuse of Drugs Act 1975, s 13(1)(a) and (3) carrying a maximum penalty of one year’s imprisonment or a $500 fine.
9      Sentencing Act 2002, s 70(a) carrying a maximum penalty of three months’ imprisonment or a
$1,000 fine.
10     Bail Act 2000, s 38(a) carrying a maximum penalty of one year’s imprisonment or a $2,000 fine.

[2]There are two other relevant contextual matters to the sentencing.

[3] First, Mr Martin was also re-sentenced for previous offending for which he was initially sentenced on 19 August 2020. This arises due to breach of his intensive supervision sentence. The Judge described this as “quite serious default”.11 Suffice it to say at this stage that the way in which the sentencing judge dealt with this aspect is not challenged on appeal.

[4] Secondly, on 2 March 2022, Mr Martin was sentenced to one month’s cumulative imprisonment on a further charge of being unlawfully in an enclosed yard.12 This is also not challenged but I have considered the issue of totality.

[5] Mr Martin argues that the starting point for the lead offending was too high, the uplifts for the remaining offending were too large, prior convictions were effectively double-counted and the sentencing judge failed to account for his youth.13

[6]He…

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 856
Decision Date: 28 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Deon Martin appealed against his sentence of 19 months' imprisonment imposed by the District Court at Whangārei. The charges against Mr Martin included driving while disqualified, dangerous driving, failing to stop, theft, possession of a utensil, breach of community work, and failure to answer bail. The appeal focused on the starting point of the sentence, the size of the uplifts for the various charges, the consideration of prior convictions, and the failure to account for Mr Martin's youth. The court found that the starting point was too high, the uplifts were too large, and there was no proper consideration of Mr Martin's youth as a mitigating factor. The appeal was allowed, and the sentence was quashed. The court substituted a sentence of 12 months' imprisonment, apportioned as follows: five months for the theft between $500 and $1000, one month cumulative for the three thefts under $500, one month cumulative for driving while disqualified, one month for dangerous driving to be served concurrently, conviction and discharge for failing to stop and driving while forbidden twice, one month for possession of a utensil to be served concurrently, conviction and discharge for breach of community work, and five months for the substituted sentence to be served cumulatively. The disqualification from holding or obtaining a driver's licence for 12 months was unchanged.

The court's decision in Martin v Police highlights the importance of considering various factors when determining an appropriate sentence. The starting point, uplifts, prior convictions, and youth are all relevant considerations that must be balanced to arrive at a sentence that is not manifestly excessive. In this case, the court found that the District Court had erred in setting the starting point too high, imposing excessive uplifts, and failing to consider the impact of Mr Martin's youth. The High Court's substitution of a 12-month sentence demonstrates the importance of carefully assessing each aspect of a sentence to ensure that it is proportionate and justified by accepted sentencing principles.

Orders