IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-36 [2017] NZHC 820
BETWEEN DEAN ANDREW MIHINUI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2017 Appearances:
S Teki-Clark and P Johnson for Appellant
E J Henderson for RespondentJudgment:
28 April 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Background
[1] The appellant pleaded guilty to two charges of theft, one charge of receiving stolen property, and one charge of possession of a knife in a public place.
[2] He was sentenced to 11 months imprisonment by the District Court Judge on
2 February 2017.1
[3] The appellant appeals against that sentence on the grounds that it was manifestly excessive, in terms of a calculation error.
Principles on appeal
[4] Appeals against sentence are brought under s 244 of the Criminal Procedure
Act 2011, and must be determined in accordance with s250 of that Act. Specifically,
1 Police v Mihinui [2017] NZDC 1975.
MIHINUI v NEW ZEALAND POLICE [2017] NZHC 820 [28 April 2017]
this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2
[5] If the sentence under appeal may be properly justified having regard to relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of
Development:4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[6] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5
the Court of Appeal held that:6
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
[7] This appeal identified a gloss on that principle, where there is an error which has meant the intended sentence was not imposed.
Appeal out of time
[8] Section 248(2) of the Criminal Procedure Act 2011 requires a notice of appeal against sentence to be filed within 20 working days of the decision.
However, the Court may grant leave to appeal out of time.7
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
4 Larkin v Ministry of Development [2015] NZHC 680.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 At [36].
7 Criminal Procedure Act 2011, s 248(4).
[9] The touchstone for granting…
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- Case
- [2017] NZHC 820
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