Read v Police - [2012] NZHC 1376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-117
CRI-2012-404-118

CRI-2012-404-119 [2012] NZHC 1376

ANTONY RAYMOND READ
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 18 June 2012

Counsel: H Laubsher for the Appellant
J Wall for the Respondent

Judgment: 18 June 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel/Solicitors:
Mr H Laubsher, Barrister, North Auckland Law Chambers, Albany
Mr J Wall, Meredith Connell, Office of the Crown Solicitor, Auckland

READ V POLICE HC AK CRI-2012-404-117 [18 June 2012]

[1] The appellant appeals against a sentence of six months home detention. This sentence was imposed in the District Court on 26 March 2012 for five offences. There was one offence of breach of a protection order, which has a maximum sentence of two years imprisonment. There was an offence of breach of a community work sentence, which has a maximum penalty of three months imprisonment. There were three breaches of conditions arising from a sentence of intensive supervision. The maximum penalty for these is six months imprisonment.

[2] The most serious offence, and the one that should be taken as the lead offence, was breach of the protection order. The order was made on 5 July 2011. The offence occurred on 4 October 2011. The offence was described by the Judge as follows:

[4] The breach of protection order charge today; this results from a protection order that was issued on 5 July 2011 against you in favour of the respondent [sic]. The respondent was at her home address in Stanmore Bay on 4 October 2011 when you arrived unannounced and uninvited and you were asked to leave. You decamped prior to police arrival and were spoken to on a later date. You had no explanation for your actions.

[3] It is relevant in this regard to note that the appellant had also been charged with assaulting the complainant. That charge was withdrawn. It is unnecessary to go into the reasons. The alleged assault arose out of the same broad circumstances giving rise to the breach of the protection order. I have mentioned this because it is clear from the sentencing notes that the Judge did not take into account any question of physical violence against the complainant in assessing the gravity of the breach of the protection offence. In the circumstances leading to withdrawal of the assault charge that was clearly the correct approach.

[4] The other offences are not to be discounted as of no consequence, but they are relatively minor in themselves and in context. In respect of the supervision sentence there was a failure to report as directed on two occasions, and on the third occasion a failure to attend a non-violence programme as directed. The breach of the community work sentence was a failure to report as directed. This occurred at the end of this offending, in November 2011.

The District Court sentencing

[5] After noting that the appellant had entered guilty pleas to these offences, and after briefly noting particulars of the offences, the Judge…

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 Read v Police

Details

AGLC: Read v Police [2012] NZHC 1376
Case: [2012] NZHC 1376
Decision Date: 18 June 2012

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Antony Raymond Read has appealed against a sentence of six months home detention imposed by the District Court. The sentence was imposed for five offences, including a breach of a protection order, a breach of a community work sentence, and three breaches of conditions arising from a sentence of intensive supervision. The most serious offence was the breach of the protection order, which involved the appellant arriving unannounced and uninvited at the complainant's home and being asked to leave. The District Court judge did not consider any question of physical violence against the complainant in assessing the gravity of the breach of the protection order. The appellant had also been charged with assaulting the complainant, but that charge was withdrawn.

The legal issues in this case were whether the starting point for the sentence was too high and whether the end sentence was manifestly excessive. The appellant argued that the District Court judge did not take into account the appellant's time in custody on remand, which was 19 weeks. The respondent submitted that the appropriate starting point for the offence of breach of a protection order would be around five months imprisonment and that there should be an uplift from that for the other offences. The respondent also submitted that an end sentence of six months home detention was clearly not manifestly excessive.

The court found that a starting point of five months imprisonment would be manifestly excessive and that a starting point of home detention would be more appropriate. The court also found that the time in custody of 19 weeks together with the additional time spent serving the home detention sentence from 26 March 2012, easily equates to the maximum sentence that should properly have been imposed on the appellant. The court therefore allowed the appeal and quashed all of the sentences of six months home detention, replacing them with sentences of home detention expiring on 17 April 2012. The special conditions to apply following completion of the home detention sentence imposed in the District Court are to apply for six months on this substituted sentence.

Orders