Police v Knox - [2013] NZHC 2760

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000067 [2013] NZHC 2760

BETWEEN NEW ZEALAND POLICE Appellant

ANDKERRY BRUCE SHANE KNOX Respondent

Hearing: 22 October 2013

Counsel: P K Feltham for Appellant
D A Ewen for Respondent

Judgment: 22 October 2013

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether a sentence of 12 months’ home detention and 200 hours’ community work imposed on Mr Knox in respect of four charges concerning the supply of methamphetamine was either:

(1) imposed without jurisdiction; or

(2) clearly inadequate or inappropriate.

Context

[2] This question arises in the context of an appeal by the police from a sentence imposed on Mr Knox by Judge Broadmore on 31 July 2013.

NEW ZEALAND POLICE v KNOX [2013] NZHC 2760 [22 October 2013]

Relevant legislation and principles

[3] Where a person has been sentenced in the District Court the Solicitor-General may authorise the informant to appeal the sentence to the High Court.1 In this case, the notice of appeal, signed by counsel on behalf of the informant was accompanied by a notice of written consent from a Deputy Solicitor-General who gave his consent to the appeal, on behalf of the Solicitor-General.2

[4] Under s 121(3) of the Summary Proceedings Act 1957 I may quash or vary a sentence that the District Court had no jurisdiction to impose or which is “clearly ... inadequate or inappropriate”.

[5] The principles which govern this appeal are the same as those which apply to a Solicitor-General’s appeal to the Court of Appeal against a sentence imposed by a lower court. Those principles are:

(1) I should allow the appeal if it is clear that:

(a) the sentence appealed from was “manifestly inadequate”;3 or

(b) Judge Broadmore committed an error of principle.4

(2) I should ensure that I “do not override the sentencing judge’s discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence”.5

(3) I should be less inclined to allow the appeal when a community-based sentence has been imposed and complied with than where the
inadequacy of a custodial sentence is an issue.6

1      Summary Proceedings Act 1957, s 115A.
2      Constitution Act 1986, s 9C.
3      R v Wihapi [1976] 1 NZLR 422 (CA).
4      R v Wihapi, above n 3.
5      R v Donaldson (1997) 14 CRNZ 537 (CA) at 549-550.
6      R v Donaldson, above n 5.

(4) I should not increase a sentence if doing so would cause an injustice to Mr Knox.7

(5) Even if I were to allow the appeal I should intervene to the minimum extent that is possible to correct a manifest inadequacy in the sentence.8

Another principle which governs Solicitor-General’s appeals, but which is not relevant in this case, is that where the sentencing arises from a trial I should be mindful of the advantages of the sentencing judge has in seeing and hearing witnesses and…

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 Knox

Details

AGLC: Police v Knox [2013] NZHC 2760
Case: [2013] NZHC 2760
Decision Date: 22 October 2013

CaseChat Overview and Summary

The case involves an appeal by the New Zealand Police against a sentence imposed on Kerry Bruce Shane Knox by Judge Broadmore. Knox was convicted on four drug-related charges, including conspiracy to supply methamphetamine, supplying methamphetamine, offering to supply methamphetamine, and possession of methamphetamine for the purposes of supply. The police appealed the sentence of 12 months' home detention and 200 hours' community work, arguing it was either imposed without jurisdiction or clearly inadequate or inappropriate. The High Court considered the principles governing such appeals, including whether the sentence was manifestly inadequate or if the sentencing judge had committed an error of principle.

The Court examined whether the sentence was imposed without jurisdiction or was clearly inadequate or inappropriate. The Crown argued that the sentence was imposed without jurisdiction, but the Court found that Judge Broadmore had jurisdiction to impose the sentence. However, the Court found that the sentence was clearly inadequate or inappropriate due to the three factors considered by Judge Broadmore: the additional time Knox spent on electronically monitored (EM) bail, the high level of attachment between Knox and his son, and Knox's absence of further offending while on bail. The Court held that these factors did not justify a further ten-month discount in Knox's prison sentence, leading to a clearly inadequate and inappropriate sentence. The Court concluded that the sentence should have been two years and three months' imprisonment, considering the appropriate discounts for time spent on EM bail, home detention, and community work.

The High Court allowed the police appeal, quashed the sentence of home detention and community work, and sentenced Knox to two years and three months' imprisonment on all four charges, with the sentences to run concurrently. The Court's decision was based on the principles of accountability, denunciation, deterrence, and consistency with sentences imposed on co-offenders.

Orders