Ross v Police - [2014] NZHC 75

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-371 [2014] NZHC 75

BETWEEN LEGEND TEKOERU ROSS Appellant

ANDPOLICE Respondent

Hearing: 5 February 2014

Appearances: M S Gibson for Appellant
A Boberg for Respondent

Judgment: 5 February 2014

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
5 February 2014 at 5.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
M S Gibson, Auckland
Meredith Connell, Crown Solicitors, Auckland

ROSS v POLICE [2014] NZHC 75 [5 February 2014]

[1] The appellant, Mr Ross, appeals against a sentence imposed by Judge Paul in the District Court at Auckland upon his conviction on a charge of unlawfully interfering with a motor vehicle. The charge was one of 14 that were before the Judge for sentencing on 19 November 2013, after the appellant pleaded guilty following a sentencing indication given by the Judge on 13 November.

[2] The matter arises in an unusual context which needs to be explained. At the sentence indication hearing on 13 November, the Judge had to deal with 13 charges that had been laid indictably and in respect of which Mr Ross had previously been convicted, but had successfully appealed.

[3] There were four charges alleging burglary, two charges of unlawful taking from a motor vehicle, three charges alleging theft from a motor vehicle and four charges of unlawfully interfering with motor vehicles. The offence dates were 23 and 24 August 2011. The present appeal does not relate to the sentences imposed on any of those charges. Rather, it is in relation to a separate charge, laid summarily, and alleging interference with a motor vehicle on 8 April 2013.

[4] The Judge referred to this separate charge in his sentencing indication where he said:1

[15] I should add that this sentencing indication is also sought to cover off a further summarily laid offence of interfering with a motor vehicle from
8 April this year. I have reviewed the facts of that offending and in the circumstances, this sentencing indication will cover that summary offending
and there will be no increase to the starting point to take account of that in my view.

[5] It is relevant to note that the Judge referred briefly in his sentencing indication to the salient features of the offending subject to the other charges of interfering with motor vehicles:

[6] Finally, the unlawfully interfering with motor vehicle charges are four in total, a Toyota Vitz, a window was broken, a Honda Civic’s quarter light window was smashed, a Toyota Caldena’s passenger window was smashed and a Nissan Pulsar’s quarter light window was smashed.

He did not say anything about the facts behind the further charge which is the subject of the present appeal, other than the brief comments already set out above.

[6] It is relevant also to record that the Judge was dealing with an offender who had spent almost one year in custody during his remand for the original offending and following…

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 Ross v Police

Details

AGLC: Ross v Police [2014] NZHC 75
Case: [2014] NZHC 75
Decision Date: 5 February 2014

CaseChat Overview and Summary

In the case of Ross v Police, the appellant, Mr Ross, appealed against a sentence imposed by Judge Paul in the District Court at Auckland. The appeal was against a sentence imposed following Mr Ross' conviction for unlawfully interfering with a motor vehicle. The appeal had two main strands, the first being the inaccuracy in the Judge's sentencing indication regarding the implications of the sentence under the Parole Act. The second argument was that the sentence was excessive. The Court found that the Judge's observations regarding parole eligibility were incorrect, as the provisions of the Parole Act meant that Mr Ross would be obliged to serve nine months of the sentence before being eligible for parole. However, the Court held that this inaccuracy did not affect the sentence imposed, as the responsibility for calculating time spent on remand was removed from the sentencing court to the superintendent of the penal institution. The Court also found that the sentence of 18 months' imprisonment was excessive, and substituted a sentence of 12 months' imprisonment.

The legal issues in this case were whether the Judge's observations regarding parole eligibility were accurate, and whether the sentence imposed was appropriate. The Court held that the Judge's observations were incorrect, but that this did not affect the sentence imposed. The Court also held that the sentence of 18 months' imprisonment was excessive, and substituted a sentence of 12 months' imprisonment. The Court noted that while the Judge's suggestion regarding parole eligibility may have been influential in the decision to plead guilty, it was clear that those implications were not relevant to the sentencing exercise itself and it may be better to avoid such references altogether. However, if they are to be made, they clearly need to be accurate.

Orders