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Robinson v Police

Robinson v Police

Case [2019] NZHC 1412 20 June 2019

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0034

[2019] NZHC 1412

BETWEEN
KENNETH CHARLES ROBINSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 June 2019

Appearances:

R T Nye-Wood for the appellant ASC Alcock for the respondent

Judgment:

20 June 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Public Defence Service, Hamilton Almao Couch, Hamilton

ROBINSON v NEW ZEALAND POLICE [2019] NZHC 1412 [20 June 2019]

[1] Kenneth Robinson appeals his sentence of nine months’ imprisonment imposed by Judge M L S F Burnett in the District Court at Hamilton on 18 April 2019.1 Mr Robinson had pleaded guilty to one charge of breaching a protection order.2

Approach to appeals against sentence

[2] I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.3 In any other case, I must dismiss the appeal.4 The approach previously taken by courts on sentencing appeals continues to apply;5 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentence appeals.6 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than by the process by which it is reached.7

Offending

[3] A protection order was issued against Mr Robinson by the Tauranga Family Court on 4 October 2006. It became final on 4 January 2007. He has been in an on- and-off relationship with the applicant for the order –the victim in the appeal – for 17 years.

[4] On 13 February 2019, Mr Robinson was at the victim’s address in Hamilton. He began verbally abusing a friend of the victim who arrived at the address. The victim told Mr Robinson to leave but he refused. He used her phone to call the landlord before the victim grabbed her phone back and called the police. In continued breach of the protection order, Mr Robinson refused to leave.8

1      Police v Robinson [2019] NZDC 7451.
2      Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3). The maximum penalty is three years’ imprisonment.
3      Criminal Procedure Act 2011, s 250(2).
4      Section 250(3).
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
6      At [33] and [35].
7      Ripia v R [2011] NZCA 101 at [15].
8      Under s 19(2)(c) of the Domestic Violence Act 1995, it is a condition of every protection order that a respondent must not, without the protected person’s express consent, remain on any land or building occupied by the protected person.

District Court decision

[5]Judge Burnett ordered an end sentence of nine months’ imprisonment, after:

(a)adopting a starting point of six months’ imprisonment;

(b)applying a six-month uplift for Mr Robinson’s previous breaches of the protection order and continued pattern of offending; and

(c)applying a full 25 per cent discount in…

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 Robinson v Police

Details

AGLC: Robinson v Police [2019] NZHC 1412
Case: [2019] NZHC 1412
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Kenneth Charles Robinson appealed his sentence of nine months’ imprisonment imposed by Judge M L S F Burnett in the District Court at Hamilton on 18 April 2019. Mr Robinson had pleaded guilty to one charge of breaching a protection order. The District Court had ordered an end sentence of nine months’ imprisonment, after adopting a starting point of six months’ imprisonment, applying a six-month uplift for Mr Robinson’s previous breaches of the protection order and continued pattern of offending, and applying a full 25 per cent discount in recognition of Mr Robinson’s guilty plea. Mr Robinson argued that the end sentence was manifestly excessive because: (a) the Court proceeded with sentencing on an incorrect factual basis; (b) the uplift for previous convictions was disproportionately high; and (c) no credit was given for his participation in restorative justice. The High Court found that while there were factual errors in the District Court’s judgment, they did not significantly impact the end sentence. The six-month uplift for Mr Robinson’s previous breaches of the protection order was appropriate, given the seriousness of his continued non-compliance with the order. Lastly, while Mr Robinson’s participation in restorative justice should have been considered by the Judge, the marginal impact of any discount would have been insufficient to render the end sentence manifestly excessive. The appeal was dismissed.

The final orders of the court were that the appeal is dismissed.

Orders