Palmer v Police - [2015] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-91 [2015] NZHC 143

BETWEEN
JAMES EVAN PALMER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2015

Counsel:

H S Edward for Appellant
N Tahana for Respondent

Judgment:

11 February 2015

JUDGMENT OF KATZ J [Sentence appeal]

This judgment was delivered by me on 11 February 2015 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Gordon & Pilditch, Crown Solicitor, Rotorua

Counsel: H S Edward, Edward Law, Rotorua

PALMER v NEW ZEALAND POLICE [2015] NZHC 143 [11 February 2015]

Introduction

[1] On 7 November 2014 the appellant, James Palmer, was sentenced to

15 months’ imprisonment for three breaches of a protection order made under the Domestic Violence Act 1995. Mr Palmer now appeals that sentence on the grounds that it was manifestly excessive and wrong in law.

Approach to appeal

[2] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.1

[3] The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.3

[4] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:4

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

1      Criminal Procedure Act 2011, s 250(3).
2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3      At [33], [35].
4      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[5] 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.5

Factual background

[6] Mr Palmer and the victim were in a relationship for about five years until late

2008. They have two children together. The relationship appears to have been marred by violence. The victim obtained a temporary protection order against Mr Palmer in late 2008, which he breached in December 2008. He was sentenced to 40 hours community work in respect of that breach.

[7] A final protection order was…

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: [2015] NZHC 143
Decision Date: 11 February 2015

CaseChat Overview and Summary

James Evan Palmer was sentenced to 15 months' imprisonment for breaching a protection order made under the Domestic Violence Act 1995. He appealed the sentence, arguing it was manifestly excessive and wrong in law. The court had to determine if the sentence imposed by the District Court was within the range that could be justified by accepted sentencing principles. The court noted that Parliament had recognised that victims of domestic violence are a particularly vulnerable group in society, and the making of a protection order is the primary mechanism through which that protection can be achieved. Breaches of a protection order are potentially serious and undermine the legislative purpose of the Domestic Violence Act. The court found that the starting point of 14 months adopted by the District Court was not manifestly excessive, but an uplift of six months for previous convictions may have been excessive. After applying a 25% discount for the guilty plea, the court found that the sentence should have been 13 months’ imprisonment. The appeal was allowed, and the sentence was reduced to 13 months' imprisonment, to be served concurrently. All other aspects of the sentence imposed in the District Court, including the special conditions of release, were to remain unchanged.

Orders