Menefy v Police - [2020] NZHC 162

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000002

[2020] NZHC 162

BETWEEN
SAMANTHA BEVERYLY MARION MENEFY

Appellant

AND

POLICE

Respondent

Hearing: 13 February 2020

Appearances:

C D Bean for the Appellant ASC Alcock for the Respondent

Judgment:

13 February 2020

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
Bean Law, Hamilton
Almao Douch, Crown Solicitors, Hamilton

MENEFY v POLICE [2020] NZHC 162 [13 February 2020]

Introduction

[1] On 10 December 2019 Ms Menefy was sentenced by the District Court to a period of two years and two months’ imprisonment. This appeal is brought on the grounds that the sentence was manifestly excessive. Specifically it is submitted that the starting point and uplifts were too high, the discount for mitigating factors inadequate, and that the sentence was in arithmetical error.

[2]The sentence was in respect of 11 charges:

(a)burglary;1 .

(b)shoplifting over $1,000 (trailer and generator);2

(c)unlawful possession of a firearm (.22 calibre lever action rifle);3

(d)unlawful possession of a firearm (double barrel 12 gauge shotgun);4

(e)driving while suspended, third or subsequent;5

(f)failing to answer District Court bail;6

(g)possession of utensil (two glass methamphetamine pipes);7

(h)possession of utensil (one glass methamphetamine pipe);8

1      Crimes Act 1961, s 231. Maximum penalty 10 years imprisonment.
2      Crimes Act 1961, s 223(b). Maximum penalty 7 years imprisonment.
3      Arms Act 1983, s 45. Maximum penalty 4 years imprisonment, a fine not exceeding $5000, or both.
4      Arms Act 1983, s 45. Maximum penalty 4 years imprisonment, a fine not exceeding $5000, or both.
5      Land Transport Act 1998, ss 32(1)(c) & 32(4). Maximum penalty 2 years imprisonment or a fine not exceeding $6000, and an order disqualifying the driver from holding or obtaining a driver licence for a minimum of 1 year.
6      Bail Act 2000, s 38. Maximum penalty 1 year imprisonment or a fine not exceeding $2000.
7      Misuse of Drugs Act 1975, s 13(1)(a). Maximum penalty of 1 year imprisonment, a fne not exceeding $500 or both.
8      Misuse of Drugs Act 1975, s 13(1)(a). Maximum penalty of 1 year imprisonment, a fne not exceeding $500 or both.

(i)shoplifting (under $500);9

(j)shoplifting (under $500);10 and

(k)shoplifting (under $500).11

Background

[3]The background to the charges is as follows.

[4] On 16 March 2019 police stopped Ms Menefy in the vehicle she was driving as part of a routine traffic stop. It was found she was driving while suspended.

[5] On 26 April 2019 Ms Menefy entered a rural property by jemmying open the toilet window. The property and occupants were not known to Ms Menefy. The occupants were not home at the time of the offence. Upon gaining access to the house, Ms Menefy conducted what is described as a “messy” search of the property. She took with her numerous items, including a jewellery box with valuable contents. The total value of the stolen items was $16,720. This offending occurred while Ms Menefy was on bail.

[6] On 22 May 2019 the police…

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 Menefy v Police

Details

AGLC: Menefy v Police [2020] NZHC 162
Case: [2020] NZHC 162
Decision Date: 13 February 2020

CaseChat Overview and Summary

Samantha Menefy appeals against her sentence of two years and two months' imprisonment imposed by the District Court, arguing that the sentence was manifestly excessive. The appeal focuses on the starting point and uplifts being too high, the discount for mitigating factors being inadequate, and an arithmetical error in the sentence calculation. The court must decide whether the sentence imposed was manifestly excessive or wrong in principle, considering the end result rather than the process by which the sentence was reached.

The court considers the starting point and uplifts, noting that while they are stern, they are not outside the range of what is acceptable. It also examines the discounts applied, finding them adequate. However, the court identifies an arithmetical error in the sentencing notes, leading to a final sentence of 24 months' imprisonment instead of 26 months. The court then turns to the issue of home detention, acknowledging that while Ms Menefy was not an appropriate candidate for it due to her extensive criminal history, the Grace Foundation's rehabilitative programme presents a realistic prospect of rehabilitation. The court concludes that, in principle, the sentence should be commuted to 12 months' home detention, with the first 18 weeks to be served at the Grace Foundation's facility.

The court allows the appeal, substituting a term of imprisonment of 24 months for that imposed by the District Court, and grants leave to the appellant to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention. Any such sentence of home detention would need to take into account the period of imprisonment which Ms Menefy has thus far served.

Orders