Potter v Police - [2014] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000044 [2014] NZHC 1769

BETWEEN
EDWARD KEITH POTTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4-5 June and 29 July 2014

Counsel:

M Hislop for Appellant
T Hu (4-5 June) and KR Muirhead (29 July) for Respondent

Judgment:

29 July 2014

JUDGMENT OF ASHER J

Solicitors/Counsel:
M Hislop, Auckland.
Crown Solicitor, Auckland.

POTTER v POLICE [2014] NZHC 1769 [29 July 2014]

[1] The appellant, Edward Keith Potter, pleaded guilty in the District Court at Auckland to two charges of breaching a protection order and a charge of breaching a community work requirement. He was sentenced by Judge G A Fraser on
6 September 2013 to 125 hours’ community work and nine months’ supervision.1 He

appeals the sentence.

[2] In his decision Judge Fraser noted that the offending on all three charges was historical. The protection order breaches had occurred in early 2012. The Judge noted that there had been no prior breaches between the time when the protection order was made and served on 7 January 2009 and the specific incidents which took place on 3 March 2012 and 5 April 2012. He noted the lack of any previous convictions for breaching protection orders, but that there were convictions for
breaching other orders of the Court and other convictions. He stated that:2

Had there been more recent offending of a similar nature then I would not be dealing with it by way of community work but I accept that change has occurred and in recognition of that a community work sentence is appropriate. That also protects your employment situation which, in my view, is important and is also protective of likely future offending.

[3] While there has been a short submission made by Mr Hislop for Mr Potter in his written submissions that the sentence was manifestly excessive, this particular submission was not pursued by Mr Hislop orally before me. Rather the focus of his submission was that the appellant would not be able to comply with a sentence of community work and maintain his present commitments. Mr Hislop accepted that Mr Potter must be held accountable for his offending, and after some discussion with me and after taking instructions from his client, he submitted that a penalty of community detention could be an appropriate alternative. In other words he did not contest the 125 hours of community work and supervision imposed on the basis that it was manifestly excessive, but rather that it was not the appropriate sentence in the circumstances.

[4] Mr Hislop proposed a sentence of community detention of one to two months. Although I did not understand him to contest the proposition that a sentence
of up to three months could be within range.

1 Police v Potter DC Auckland CRI-2012-044-2487, 6 September 2013.
2 At [3].

[5] Ms Hu for the respondent submitted that the Judge’s sentence was entirely appropriate in the circumstances. However, after some discussion with me she accepted that a sentence of community…

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 Potter v Police

Details

AGLC: Potter v Police [2014] NZHC 1769
Case: [2014] NZHC 1769
Decision Date: 29 July 2014

CaseChat Overview and Summary

Edward Keith Potter appealed against his sentence for breaching a protection order and a community work requirement. He was sentenced to 125 hours of community work and nine months' supervision. The appellant argued that the sentence was not appropriate given his work and domestic commitments, which made it impossible for him to comply with the community work requirement. The respondent argued that the original sentence was appropriate. The court had to decide whether community work was an appropriate sentence, given the appellant's work and domestic commitments. The court found that the appellant's assertions regarding his work and domestic commitments were credible, and that the original sentence was not appropriate. The court imposed a sentence of 15 weeks community detention instead, with the original supervision sentence remaining. The appeal was allowed in part, and the original sentence was quashed and replaced with the new sentence.

Orders