P v Police - [2023] NZHC 402

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-000021

[2023] NZHC 402

BETWEEN
P

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 28 February 2023

Appearances:

E J Forster for Appellant

M J M Mitchell for Respondents

Judgment:

6 March 2023

JUDGMENT OF VAN BOHEMEN J

[Appeal against sentence]

This judgment was delivered by me on 6 March 2023, at 3:00 pm

Registrar/Deputy Registrar
……………………………..

Counsel/Solicitors: E J Forster, Hastings
Crown Solicitor at Napier

P v NEW ZEALAND POLICE [2023] NZHC 402 [6 March 2023]

[1] P appeals the sentence of two years and three months’ imprisonment imposed by Judge R J Collins in the District Court in Hastings1 after P pleaded guilty to four charges of breaching a protection order,2 one charge for threatening to cause grievous bodily harm3 and one charge for breaching community work.

[2] The charges of breaching a protection order arose from P contacting his daughter twice and his son once by Facebook messenger and from P entering the home of his former partner and mother of his children.

[3] P has also pleaded not guilty to one charge of burglary4 arising from P’s entry into his former partner’s home. No trial has taken place on the burglary charge.

[4] Mr Forster, counsel for P, submits that the sentence is manifestly excessive on the grounds that:

(a)the Judge’s initial starting point was too high as it was based on the burglary charge for which P was not being sentenced at the time;

(b)the Judge’s uplifts for concurrent offending amounted to double punishment;

(c)the Judge’s uplift for P’s previous convictions was too high, bearing in mind the sentences imposed for the previous offending; and

(d)P was entitled to a full 25 per cent guilty plea for entering his pleas at the earliest possible opportunity, as opposed to the 20 per cent discount he was given.

[5]The Police oppose the appeal.

1      Police v P [2022] NZDC 23563.
2      Family Violence Act 2018, ss 90(a) and (b) and 112(1)(a). Maximum penalty 3 years’ imprisonment.
3      Crimes Act 1961, s 306. Maximum penalty 7 years’ imprisonment.
4      Crimes Act 1961, s 231. Maximum penalty 10 years’ imprisonment

Background

[6] The following account is taken principally from the Police summary of facts, which is the same summary of facts that forms the basis of the burglary charge.

[7] P was in a relationship with the victim for approximately 18 years. They have three children together.

[8] P and the victim have been separated since February 2022. Since then, the victim blocked P’s phone number and Facebook messenger, in order to prevent him from communicating with her. There have been seven previous family…

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 P v Police

Details

AGLC: P v Police [2023] NZHC 402
Case: [2023] NZHC 402
Decision Date: 6 March 2023

CaseChat Overview and Summary

In P v Police, the High Court considered an appeal against a sentence of two years and three months' imprisonment imposed by the District Court on P, who had pleaded guilty to multiple charges including breaching a protection order and threatening to cause grievous bodily harm. P argued that the sentence was manifestly excessive on several grounds, including that the starting point was too high, the uplifts for concurrent offending amounted to double punishment, the uplift for previous convictions was too high, and P was not given a full 25% discount for his guilty pleas. The Police opposed the appeal. The Court held that while the starting point of 18 months' imprisonment was appropriate, the six-month uplift for P's previous convictions was excessive. The Court also found that the 20% discount for P's guilty pleas was acceptable, given the strength of the prosecution's case. The Court allowed P's appeal in part, substituting a sentence of two years and one month's imprisonment. P was not eligible for home detention.

Orders