Maxwell v Police - [2020] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-515

[2020] NZHC 219

BETWEEN
MELISSA MAXWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 February 2020

Counsel:

A Maxwell-Scott for Appellant J Kang for Respondent

Judgment:

20 February 2020

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 20 February 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

MELISSA MAXWELL v NEW ZEALAND POLICE [2020] NZHC 219 [20 February 2020]

[1] Ms Maxwell pleaded guilty to two charges of burglary. She was sentenced in total to two years and three months’ imprisonment. She appeals against the sentence on the basis that it was manifestly excessive. Several appeal issues arise but it is common ground that, with the benefit of a detailed affidavit as to her background, Ms Maxwell deserves a personal circumstances discount, yet she did not receive one. I am also satisfied that Ms Maxwell’s sentence should be commuted to home detention and indicated as much to counsel. My reasons are as follows.

Background

[2] The background facts can be stated briefly. The first burglary occurred on 18 January 2015. Between 11.30 am and 2.30 pm on that day, Ms Maxwell entered the victim’s address. Ms Maxwell took a TV, jewellery and a handbag with miscellaneous items, valued at approximately $5,500. The second burglary occurred on Sunday, 5 May 2019 at approximately 12.00 pm. The victim was not present at the time of the burglary. Ms Maxwell entered the address through an unlocked door and began searching the property. She located and took a large amount of jewellery consisting of earrings, necklaces and rings. While Ms Maxwell was searching a bedroom, the victim returned. Ms Maxwell then ran to her vehicle, removed the registration plates and fled the area. She left with multiple jewellery items valued at approximately $17,000 and three passports belonging to the victim.

District Court sentencing notes

[3] The sentencing notes are brief. Relevantly, they record the following (including handwritten notes in parentheses):

[5] Turning to your sentence, both the police and prosecution and your lawyer are of the same mind about the outcome and your lawyer has said that there should be an initial starting point in respect of two years’ imprisonment for the lead charge of burglary, that is the one on 5 May 2019, and that there should be a further uplift for the second charge and that a global starting point for sentencing being in the region of two years and six months and two years and eight months reflecting the totality of the charges. Then taking into account the aggravating features that I have mentioned, in respect of the burglary being a private dwelling house and the taking of a large amount of jewellery and property belonging to the offenders, a further uplift be taken making a totality of (thirty-six months).

[6] Doing these calculations is…

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 Maxwell v Police

Details

AGLC: Maxwell v Police [2020] NZHC 219
Case: [2020] NZHC 219
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Melissa Maxwell appealed against her two-year-and-three-month imprisonment sentence, imposed by the District Court, for two charges of burglary. She argued that the sentence was manifestly excessive. The court was required to determine whether the sentence was erroneous and, if so, whether a different sentence should be imposed. The court considered whether the District Court erred in failing to take into account mitigating personal circumstances and whether the sentence was manifestly excessive.

The court held that the sentence imposed was erroneous because the District Court had failed to consider personal mitigating factors that were available to the court at the time of the appeal. The court noted that Ms Maxwell’s background and personal circumstances were significant factors that should have been considered in the sentencing process. The court found that a discount of between 20 to 30 per cent was appropriate, which would have resulted in a sentence of between 21 to 24 months’ imprisonment. However, given that Ms Maxwell had already served 3.5 months of her sentence and had been remanded in custody for about four months, the court commuted her sentence to eight months’ home detention.

The court quashed the sentence of imprisonment and ordered that Ms Maxwell’s sentence be commuted to eight months’ home detention, commencing from 12.00 pm, 21 February 2020. The court also directed that parts of the judgment be suppressed to maintain Ms Maxwell’s privacy.

Orders