Reid v Police - [2015] NZHC 299

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000042 [2015] NZHC 299

BETWEEN
WIREMU BRIAN REID

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 February 2015

Appearances:

W Hawkins for Appellant
M Mitchell for Respondent

Judgment:

26 February 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WIREMU BRIAN REID v NEW ZEALAND POLICE [2015] NZHC 299 [26 February 2015]

[1] Mr Reid pleaded guilty in the District Court to two charges of breaching release conditions and one charge of breaching a protection order obtained by his former partner. The maximum penalty in respect of the charge of breaching release conditions is one year’s imprisonment, whilst the maximum penalty on the other charge is three years imprisonment.

[2] On 28 November 2014, Judge Adeane sentenced Mr Reid to an effective term of six months imprisonment.1 He appeals against sentence on the basis that it is manifestly excessive. Mr Reid’s counsel, Mr Hawkins, argues that the Judge adopted a starting point that was too high and did not apply a sufficient discount to reflect his guilty pleas and the fact that he had spent nearly five weeks subject to restrictive terms of EM bail.

Background

[3] The charges were laid as a result of two separate incidents. The first of these occurred on 28 July 2014. The summary of facts records that on that date Mr Reid went to his former partner’s address. She had earlier obtained a protection order against him. He had also been released from prison on 30 April 2014 subject to release conditions. One of these was that he was not to associate with or contact his former partner without the prior written approval of a probation officer.

[4] Mr Reid remained at his former partner’s address for approximately 24 hours. On the morning of 29 July 2014, he and his partner became involved in an argument. When his partner went to use her cellphone, Mr Reid grabbed it and threw it against a wall. This caused the phone to break and his partner was therefore unable to contact the police. She then ran out of the house and Mr Reid chased her.

[5] Later that day, Mr Reid’s partner went to an appointment with her social worker and used the social worker’s cellphone to call the police. When the police interviewed Mr Reid about this incident, he said that he had not been to his former
partner’s house within the last three months.

1 New Zealand Police v Reid DC Hastings CRI-2014-041-001521, 28 November 2014.

[6] Mr Reid appeared in Court for the first time on the charges arising out of that incident on 1 August 2014. He was then released on bail on conditions, including a condition that he not associate with his former partner. He then went to her address again on 21 August 2014, and remained there for approximately three days. A number of incidents occurred during his stay, and these led to further charges being laid. I am told that…

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.

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Details

Case: [2015] NZHC 299
Decision Date: 26 February 2015

CaseChat Overview and Summary

In Reid v Police, the appellant, Wiremu Brian Reid, appealed against his sentence imposed by the District Court for two charges of breaching release conditions and one charge of breaching a protection order obtained by his former partner. The District Court Judge sentenced Mr Reid to an effective term of six months imprisonment. Mr Reid argued that the sentence was manifestly excessive and that the Judge adopted a starting point that was too high and did not apply a sufficient discount for his guilty pleas and the fact that he had spent nearly five weeks on electronic monitoring (EM) bail. The High Court was required to determine whether the District Court Judge erred in the sentence imposed on Mr Reid. The High Court considered the offending as a whole and took into account the aggravating factors, including Mr Reid's previous convictions for similar offending against his former partner. The Court agreed with Mr Reid's counsel that an appropriate starting point to take into account the aggravating factors was one of around four months imprisonment. However, the Court did not accept that an increase of just one month would be sufficient to recognise the second incident. The Court found that an uplift of at least two months would be required to reflect the second incident. The Court also considered the mitigating factors, including Mr Reid's guilty pleas, and found that a discount of around 15 per cent was appropriate. The Court concluded that an end sentence of six months imprisonment was warranted and well within the available range. The appeal against sentence was dismissed.

This case highlights the importance of considering the offending as a whole when determining an appropriate sentence. The Court took into account the aggravating and mitigating factors when determining the starting point and the sentence to be imposed. The Court also considered the previous convictions of the appellant and the fact that the second incident occurred just one month after the first and at a time when the appellant was on bail in respect of the first charges. The Court found that an uplift of at least two months would be required to reflect the second incident and that a discount of around 15 per cent was appropriate for the appellant's guilty pleas. The Court concluded that an end sentence of six months imprisonment was warranted and well within the available range. The appeal against sentence was dismissed.

Orders