Payne v Police - [2013] NZHC 1157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0071 [2013] NZHC 1157

BETWEEN KARINA MARIE PAYNE Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 May 2013

Appearances:

E J Burton and R J Stevens for Appellant
M K Regan for Respondent

Judgment:

21 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 May 2013 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Meredith Connell, Crown Solicitor, Auckland: michael.regan@meredithconnell.co.nz

Copy for:
Public Defence Service, Auckland Office: ella.burton@justice.govt.nz / rob.stevens@justice.govt.nz

PAYNE v POLICE [2013] NZHC 1157 [21 May 2013]

Introduction

[1] The Appellant appeals against a sentence imposed by Judge G A Fraser in the

District Court at Auckland on 21 February 2013.1 The Judge imposed a sentence of

11 months’ imprisonment and declined leave to apply for home detention.

[2] The charges on which the Appellant was for sentence and the sentences that the Judge imposed are as follows:2

(a) possession of methamphetamine (two grams) – four months’

imprisonment;

(b) possession of cannabis (25 grams) – one month’s imprisonment;

(c) possession of a restricted weapon, namely pepper spray – four

months’ imprisonment;

(d) possession of an offensive weapon – three months’ imprisonment;

(e) failure to report of probation officer when subject to sentence of community work – two months’ imprisonment;

(f) breach of bail – two months’ imprisonment;

(g) breach of conditions of intensive supervision – two months’

imprisonment; and

(h) theft less than $500 – one month’s imprisonment.

[3] The sentences referred to in [2](a), [2](c), [2](e) and [2](h) above were cumulative, and all others concurrent.

[4] The end sentence of 11 months represented:

1 Police v Payne DC Auckland CRI-2012-004-13829, 21 February 2013.
2 Ibid, at [23] to [30].

(a) a starting point of eight months’ imprisonment which comprised two months in respect of the charges referred to in [2](a) and [2](b) above; three months in respect of the charges referred to in [2](c) and [2](d); two months in respect of the charges referred to [2](e), [2](f) and [2](g); and one month in respect of the charge referred to in [2](h) above; and

(b)an uplift of 50 per cent (four months’ imprisonment) on account of the Appellant’s prior convictions, and a reduction of one month’s imprisonment (being a little less than 10 per cent) on account of the Appellant’s guilty pleas.

[5] On appeal, the Appellant contends:

(a) that the sentence imposed was manifestly excessive; and

(b) that the Judge erred in declining leave to apply for home detention.

Discussion

[6] I am not persuaded that the starting point of eight months’ imprisonment was manifestly excessive. The offences were committed on six different dates and were different in kind. That said, I accept the Appellant’s submission that an uplift of
50 per cent on account of her prior convictions and the discount given for the Appellant’s guilty pleas resulted in an end sentence that was manifestly excessive. I consider that an uplift of…

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: [2013] NZHC 1157
Decision Date: 21 May 2013

CaseChat Overview and Summary

In Payne v Police, the Appellant, Karina Marie Payne, appealed against a sentence imposed by Judge G A Fraser in the District Court at Auckland on 21 February 2013. Payne was sentenced to 11 months’ imprisonment for various charges, including possession of methamphetamine, possession of cannabis, possession of a restricted weapon, possession of an offensive weapon, failure to report to a probation officer, breach of bail, breach of intensive supervision conditions, and theft. The Appellant argued that the sentence was manifestly excessive and that the Judge erred in declining her application for home detention.

The legal issues before the court were whether the sentence was manifestly excessive and whether the Judge was correct in denying Payne leave to apply for home detention. The court found that the starting point of eight months’ imprisonment was not manifestly excessive, but the uplift of 50 per cent on account of Payne's prior convictions and the discount for her guilty pleas resulted in an end sentence that was excessive. The court concluded that an uplift of no more than two months and a discount of up to 20 per cent was appropriate, resulting in a sentence of eight months’ imprisonment.

The court also found that the Judge did not err in denying Payne leave to apply for home detention. The Appellant's criminal history showed that she had failed to comply with conditions during non-custodial sentences and on release. However, the court noted a significant change in Payne's circumstances after sentencing, as her 16-year-old daughter was involved in a serious car accident. The court accepted that Payne was the best person to care for her daughter and another child and that Community Probation Services supported Payne remaining in the community. The Crown did not oppose the substitution of a sentence of home detention.

Taking into account the time already served by Payne and the change in her circumstances, the court set aside the sentence imposed by the Judge and substituted a sentence of four months’ home detention, to commence on 31 May 2013. The sentence of home detention was to be served at a specified address in Te Atatu, Auckland, with additional special conditions imposed, including compliance with electronic monitoring and abstention from alcohol and illicit drugs.

Orders