Prince v Police - [2019] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-34

[2019] NZHC 1742

BETWEEN
BRADLEY PRINCE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 July 2019

Appearances:

D A Ewen for Appellant M L Paish for Respondent

Judgment:

23 July 2019

JUDGMENT OF COOKE J

[1] On 7 June 2019 the appellant, Bradley Prince, was sentenced before Judge Tompkins in the District Court at Hutt Valley to seven months’ imprisonment for two charges of breach of a protection order.1

[2] Mr Prince appeals his sentence on the grounds the sentence was manifestly excessive because the Judge erred in taking into account impermissible considerations and by failing to take account of the principle of totality.

Factual background

[3] The appellant is the subject of a protection order issued on the application of his adoptive father. The order extends protection to Mr Prince’s birth mother, the victim in this matter.

1 New Zealand Police v Prince [2019] NZDC 11268; Domestic Violence Act 1995, ss 19 and 49(1)(a), maximum penalty three years’ imprisonment.

PRINCE v NEW ZEALAND POLICE [2019] NZHC 1742 [23 July 2019]

[4] Mr Prince was adopted out at age 16. When he was 25 he reengaged with his birth mother. The relationship quickly deteriorated when Mr Prince’s drug use, alcohol and mental health problems began to surface. Mr Prince is now 42 years old and it is evident the relationship has not improved.

[5] The summary of facts states there have been at least three previous family harm incidents between the defendant and the victim. The criminal history does not record any convictions for family violence. The reference in the summary of facts may include the two previous convictions for breach of protection orders in 2012 and 2016. The current charges relate to two breaches of this protection order for entering and remaining on land occupied by a protected person without consent.

[6] On 3 December 2018 the appellant went to the victim’s house. He approached the victim in her driveway and asked for a cigarette. She refused his request and repeatedly told him to leave. He refused to leave and remained on the property until she called the Police. He was arrested and charged with breach of a protection order but granted bail on 4 December 2018.

[7] On 7 January 2019 Mr Prince again went to the victim’s house without permission. In explanation he said “yes I was there, I have been going around everyday for the past 14 weeks”. He was arrested and charged with breaching a protection order and was remanded in custody.

[8] On 13 March Mr Prince received a sentence indication of seven months’ imprisonment with release conditions.2 He entered guilty pleas that day. He unsuccessfully applied for bail on 16 April, and unsuccessfully attempted to appeal the decision refusing to grant bail on 18 April.

District Court decision

[9] The District Court decision is brief and does not explain how the Judge reached the…

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 Prince v Police

Details

AGLC: Prince v Police [2019] NZHC 1742
Case: [2019] NZHC 1742
Decision Date: 23 July 2019

CaseChat Overview and Summary

Bradley Prince appeals against his sentence of seven months’ imprisonment for two charges of breach of a protection order, arguing that the sentence was manifestly excessive because the Judge erred in taking into account impermissible considerations and by failing to take account of the principle of totality. The facts of the case are that the appellant is the subject of a protection order issued on the application of his adoptive father. The order extends protection to Mr Prince’s birth mother, the victim in this matter. The appellant was adopted out at age 16. When he was 25 he reengaged with his birth mother. The relationship quickly deteriorated when Mr Prince’s drug use, alcohol and mental health problems began to surface. There have been at least three previous family harm incidents between the defendant and the victim. The current charges relate to two breaches of this protection order for entering and remaining on land occupied by a protected person without consent.

The court found that the starting point for the sentence was six months’ imprisonment. The court did not consider the mitigating factors of mental health issues and the non-violent nature of the offending sufficient to warrant a discount over and above that for admitting the present offence. The court found the sentence of seven months imprisonment to be outside the available range. The court also found that the post release conditions in combination with the seven month period of imprisonment resulted in an end sentence all out of proportion to the gravity of the offending, and that the Judge failed to consider totality. The court substituted an end sentence of four months’ imprisonment, with the standard and special release conditions as specified by the District Court.

Orders