Legal Research
Cases
Mitchell v Police

Mitchell v Police

Case [2019] NZHC 3264 11 December 2019

Appeal

Breach of Contract

Unconscionable Conduct

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-60

[2019] NZHC 3264

BETWEEN
KERRYN MITCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2019

Appearances:

C J Tennet for the Appellant

G J Burston for the Respondent

Judgment:

11 December 2019

Reissued:

20 December 2019

JUDGMENT OF COOKE J

[1] On 26 June 2019 Ms Mitchell was convicted of two charges of breach of a protection order and one charge of burglary before Judge Tompkins in a judge alone trial in the District Court at Hutt Valley.1 For those convictions she was sentenced to two years, nine months’ imprisonment.2

[2] Ms Mitchell now appeals the burglary conviction and one of the breach of protection order convictions on the ground the Judge erred in his assessment of the evidence. Ms Mitchell appeals her sentence on the grounds the starting point was too high, the Judge did not consider totality, the case was not one where a penalty near to

1 New Zealand Police v Mitchell [2019] NZDC 16222 [Conviction decision]; Domestic Violence Act 1995, s 49, maximum penalty three years’ imprisonment; Crimes Act 1961, s 231, maximum penalty 10 years’ imprisonment.
2 New Zealand Police v Mitchell [2019] NZDC 19697 [Sentencing decision].

MITCHELL v NEW ZEALAND POLICE [2019] NZHC 3264 [11 December 2019]

the maximum prescribed was appropriate and the Judge failed to give a discount for the factors outlined in the psychiatric report.

Factual background

[3] Ms Mitchell is 51 years old. She was briefly in a relationship with the victim who is a subject of the protection order. That relationship ended in 2005. Since then she has had an unhealthy fixation on the victim and his wife. A protection order had initially been obtained on 24 April 2008, and in May 2010 was extended to protect the victim’s partner. Ms Mitchell has continued to harass the victims despite the imposition of the protection orders. She has served several sentences of imprisonment for offending against them and has amassed a large number of convictions.

[4] The latest set of offending arises from an incident in June 2018. The victims were on holiday in the United Kingdom. They had arranged for a family member to look after their home while they were away. At approximately 11 pm on 27 June Ms Mitchell went to the victims’ address in Lower Hutt. She entered the rear yard and attempted to open the doors to the rear entrance. For this activity she was charged with both breach of a protection order and burglary.

District Court decision

[5] At the District Court Ms Mitchell represented herself, with Mr Yeoman appointed as counsel to assist the court. After reminding himself of the burden of proof, the Judge turned to the charges before him.

[6] The Judge was satisfied beyond reasonable doubt that an initial and then temporary protection order was made in early 2008 initially protecting the victim and later extended…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2019] NZHC 3264
Case: [2019] NZHC 3264
Decision Date: 11 December 2019

CaseChat Overview and Summary

The appeal concerns Ms Mitchell's conviction of two charges of breach of a protection order and one charge of burglary, as well as the sentence imposed. Ms Mitchell appeals the burglary conviction and one of the breach of protection order convictions on the basis that the Judge erred in his assessment of the evidence. She also appeals her sentence on the grounds the starting point was too high, the Judge did not consider totality, the case was not one where a penalty near the maximum prescribed was appropriate, and the Judge failed to give a discount for the factors outlined in the psychiatric report. The appeal against conviction was dismissed and the appeal against sentence was allowed. The sentence was quashed and replaced with a sentence of 18 months’ imprisonment. The Court held that Ms Mitchell's entry onto the address on 28 June was in breach of the protection order and that the element of intent to commit an imprisonable offence was proven beyond reasonable doubt. However, the Court found that the starting point of two years, nine months’ imprisonment was outside the available range, and a sentence of 18 months’ imprisonment was appropriate. The Court also held that a discount for mental health related factors was not available as there was no evidence of a causative link between psychiatric illness and the offending. The sentence is to be replaced with a sentence of 18 months’ imprisonment, subject to specified release conditions.

Orders