Newton v Police - [2014] NZHC 2805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000322
CRI-2014-404-000323

CRI-2014-404-000324 [2014] NZHC 2805

TE-RANEI YVONNE NEWTON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 10 November 2014

Appearances:

Jacinda Bragg for the Appellant
Harriet Dymond-Cate for the Respondent

Judgment:

12 November 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 12 November 2014 at 12:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

NEWTON v NEW ZEALAND POLICE [2014] NZHC 2805 [12 November 2014]

[1] Between 17 December 2013 and 20 July 2014 Ms Newton shoplifted or otherwise stole various items from retail premises mostly around Auckland. The items were not significant or expensive. They included cosmetics, clothing, toys, food and, on two occasions, petrol. The value of these items ranged from $10 to $319. Most had a value of less than $100.

[2] During this time Ms Newton also failed to answer bail on three occasions.

[3] Also within the same period, in January 2014, having been served a trespass notice from Auckland Airport she was detected in breach of that order only three weeks after it was made. When arrested by the Police Ms Newton became extremely aggressive, verbally abusive and physical towards the officers. In the course of her arrest she deliberately turned her head towards one of the Police officers and spat directly into their face. Her saliva went over the officer’s face including in the officer’s mouth.

[4] A week later she was found driving in Mangere. When the Police attempted to stop her using sirens and red and blue flashing lights she failed to stop and sped away. At an intersection she turned across a red light and accelerated away reaching speeds of up to 140 kmph in a 60 km area before turning into a no exit street. She stopped her car outside her family address and attempted to run away but was caught by the Police and charged with resisting, failing to stop and reckless driving.

District Court decision

[5] Following pleas of guilty to all charges, Judge Treston took a starting point of 13

months’ imprisonment which he reduced to 10 months, noting:

… in giving you such credit as I can I reduce that to 10 months and I have done that by adding four months’ imprisonment to a six month term that I have already indicated.

[6] His Honour established individual sentences for each charge and imposed them concurrently for all but two which were imposed cumulatively. While the individual sentences would have totalled 38 months’ imprisonment if imposed cumulatively the end sentence of 10 months’ imprisonment appears to have been reached by imposing cumulative sentences of four months on the assault and six months for the failure to

answer District Court bail on 28 January 2014. The balance of the sentences were imposed on a concurrent basis.

Approach on appeal

[7] Appeals against sentence to the High Court are governed by s 250 of the Criminal…

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: [2014] NZHC 2805
Decision Date: 12 November 2014

CaseChat Overview and Summary

In this case, the appellant, Ms Newton, appealed against the sentence imposed by the District Court. Ms Newton had committed multiple low-level offences, including shoplifting, theft, failing to answer bail, and assault on a police officer. The court had imposed a total sentence of 10 months' imprisonment. Ms Newton argued that the sentence was manifestly excessive and that the sentence for resisting police exceeded the maximum penalty of three months' imprisonment. The appeal hinged on whether the sentence imposed by the District Court was within the range that could be properly justified by accepted sentencing principles.

The court examined the principles governing appeals against sentence, emphasizing the need for an error in the sentence imposed on the convictions and a demonstration that a different sentence should have been imposed. The court noted that the District Court had considered the totality of the offending and the appropriate total sentence necessary to meet the purposes and principles of the Sentencing Act 2002. The court compared the present case with similar cases and found that a starting point of 13 months was consistent with the authorities. Although the appellant argued that a lower starting point was appropriate, the court found that the District Court's starting point was within its sentencing discretion. The court also considered the discount applied for the guilty plea and personal circumstances, and while it agreed that the discount was at the lower end of the range, it did not consider it appropriate to give a higher discount.

The court concluded that the appeal against sentence should be dismissed, as the sentence imposed was not manifestly excessive. However, the court did correct an administrative error in the recording of the sentence for the assault charge. The sentence of six months' imprisonment recorded on Ms Newton's criminal history did not reflect the three months' imprisonment imposed by the Judge and was due to a transpositional error. The court substituted the sentence of six months with three months' imprisonment.

Orders