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Police v Cranch

Police v Cranch

Case [2022] NZHC 461 15 March 2022

Unconscionable Conduct

Res Judicata

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-367

[2022] NZHC 461

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

ANDREW JAMES CRANCH

Respondent

Hearing: 7 March 2022

Appearances:

DG Johnstone and J Lee for the Appellant JS Kovacevich for the Respondent

Judgment:

15 March 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 15 March 2022 at 12.30pm

Registrar/Deputy Registrar Date……………………………

Solicitors: Meredith Connell, Auckland To: J Kovacevich, Auckland

NZ POLICE v CRANCH [2022] NZHC 461 [15 March 2022]

Introduction

[1] The appellant appeals against a sentence of nine months’ home detention imposed upon the respondent, Mr Cranch, in the North Shore District Court on 6 July 2021 in respect of the following charges:1

(a)unlawful possession of a prohibited firearm;2

(b)unlawful possession of a pistol;3

(c)unlawful possession of a prohibited magazine;4

(d)unlawful possession of explosives (ammunition);5

(e)unlawful possession of a non-prohibited firearm;6 and

(f)possession of methamphetamine.7

[2] The appellant says that the starting point adopted by the District Court Judge of 24 months’ imprisonment was inappropriately low, and an appropriate starting point would have been in the vicinity of three and a half to four years’ imprisonment. The appellant does not take issue with the discounts adopted in the District Court. But it says that had an appropriate starting point in the order suggested been adopted, a sentence of home detention would not have been available, and that a sentence of imprisonment was the only appropriate sentence in any event. It asks this Court to sentence Mr Cranch on appeal to a sentence of imprisonment.

1      New Zealand Police v Cranch [2021] NZDC 13578 [Sentencing notes].
2      Arms Act 1983, s 50A (representative). Maximum penalty five years’ imprisonment.
3      Arms Act 1983, s 50(1)(a). Maximum penalty three years’ imprisonment and/or $4,000 fine.
4      Arms Act 1983, s 50B (representative). Maximum penalty two years’ imprisonment.
5      Arms Act 1983, s 45(1) (representative). Maximum penalty four years’ imprisonment and/or
$5,000 fine.
6      Arms Act 1983, s 45(1) (representative). Maximum penalty four years’ imprisonment and/or
$5,000 fine.
7      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty six months’ imprisonment and/or
$1,000 fine.

[3] Mr Cranch opposes the appeal. His counsel, Mr Kovacevich, submits the starting point and end sentence adopted by the District Court Judge were not manifestly inadequate, including because of assistance Mr Cranch gave to the Police shortly before his sentence indication hearing in the District Court.8 Mr Kovacevich further submits that it would be inappropriate for this Court to impose a sentence of imprisonment on appeal in any event, highlighting the courts’ reluctance to do so when a non-custodial sentence was imposed at first instance. Mr Kovacevich says that this Court should be even more reluctant to interfere with the sentence imposed by the District Court, given the prosecutor’s “active acquiescence” in that sentence. In this context, Mr Kovacevich notes that the starting point of 24 months’ imprisonment adopted by the District Court Judge had…

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 Police v Cranch

Details

AGLC: Police v Cranch [2022] NZHC 461
Case: [2022] NZHC 461
Decision Date: 15 March 2022

CaseChat Overview and Summary

The appeal in Police v Cranch [2022] NZHC 461 was brought by the New Zealand Police against the sentence of nine months’ home detention imposed upon the respondent, Mr Cranch, by the North Shore District Court. The Police submitted that the starting point of 24 months’ imprisonment adopted by the District Court was inappropriately low, and an appropriate starting point would have been in the vicinity of three and a half to four years’ imprisonment. The appeal court was asked to sentence Mr Cranch to a sentence of imprisonment. Mr Cranch opposed the appeal, submitting that the sentence was not manifestly inadequate and that the appeal court should be reluctant to interfere with a sentence of home detention imposed at first instance, particularly given the prosecutor’s active acquiescence in that sentence. After considering the authorities, the appeal court concluded that the sentence was manifestly inadequate, though it was not appropriate to interfere on appeal. The appeal was dismissed.

Orders