Perkins v Police - [2014] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000020 [2014] NZHC 1544

ROY ALEXANDER PERKINS

v

NEW ZEALAND POLICE

Hearing: 3 July 2014

Appearances:

D G Slater for Appellant
E L Higbee for Crown

Judgment:

3 July 2014

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against sentence, asserting that the sentence imposed was manifestly excessive.

[2] On 30 May 2014, the appellant, Mr Perkins, was sentenced to 33 months imprisonment on charges relating to three incidents. The appellant submits that, had a proper approach been taken, a sentence of around two years imprisonment would have sufficiently marked the totality of the appellant’s offending.

The charges

[3] The sentence relates to incidents occurring on three separate dates.

[4] On 3 August 2013 the appellant, along with three others, invaded the victims’ home at about 9.45 pm. A text message had been sent by a co-offender threatening their arrival. The appellant and his co-offenders barged into the house and began
assaulting the occupants of the house. The summary of facts records that the

PERKINS v NEW ZEALAND POLICE [2014] NZHC 1544 [3 July 2014]

appellant punched one victim in the jaw, another victim about the head and upper body at least ten times, and a third victim in the left side of the face with a haymaker type punch causing a cut to his temple.

[5] The appellant and his co-offenders also inflicted significant property damage on the house, with the total cost to repair the damage being $9,456.04.

[6] As a consequence of this event the appellant was charged with injuring with intent to injure, burglary and intentional damage.

[7] The second incident occurred on 15 November 2013 when the appellant, while on bail, was apprehended for drink driving. His evidential breath test resulted in a recording of 616 micrograms of alcohol per litre of breath.

[8] When he was placed in a police cell he damaged the cell by burning his name into the ceiling.

[9] The third incident occurred on 8 March 2014, when, at around 3.00 a.m., the appellant arrived at the house of people he had been drinking with earlier. An argument developed between the appellant and the victim, and he then assaulted the victim, threatened to kill him and threw rocks at the victim’s house breaking the window.

District Court Judge’s decision

[10] After reciting the factual background above in some detail, and noting the appellant’s previous convictions for burglary and violent offending, and for breaching Court ordered sentences, and failing to answer bail, the Judge addressed the usual sentencing principles. He took into account that the August offending was premeditated and serious violent offending, the November offending occurred while he was on bail and in breach of his bail conditions, and the March offending had parallels with the August offending in that it was “an unprovoked attack, an attack to the head and there were threats to kill”. He also records that Mr Perkins was still on bail at the time 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.

Continue reading Perkins v Police

Details

AGLC: Perkins v Police [2014] NZHC 1544
Case: [2014] NZHC 1544
Decision Date: 3 July 2014

CaseChat Overview and Summary

This appeal concerns the sentence imposed on the appellant, Mr Perkins, for multiple incidents of offending. The appellant argued that the sentence imposed was manifestly excessive, asserting that a sentence of around two years imprisonment would have been more appropriate. The case was heard in the High Court of New Zealand, Invercargill Registry, on 3 July 2014. The legal issues before the court were whether the starting point for the sentence was too high, whether the reduction for the totality principle was sufficient, and whether an appropriate credit was given for the guilty pleas.

In assessing the starting point for the sentence, the court found that the 30-month starting point for the lead offending was appropriate, given the number of aggravating factors present. However, the court found that the uplift for the third incident was too high, as it was not analogous to a home invasion. The court concluded that an eight-month uplift was more appropriate. The court also found that the reduction for the totality principle was sufficient, as it appropriately reflected the principles of denunciation, deterrence, and protection of the community. Lastly, the court found that the sentencing judge had appropriately exercised his discretion in determining the credit for the guilty pleas, taking into account the totality of the circumstances.

In conclusion, the court allowed the appeal and substituted a sentence of 30 months imprisonment for the original sentence of 33 months. While the reduction bordered on "tinkering," the court found that it was a material change to the sentence from the appellant's perspective. The court's final orders were that the sentence of 33 months be quashed and replaced with a sentence of 30 months imprisonment.

Orders