Saunders v Police - [2017] NZHC 1433

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-5 [2017] NZHC 1433

BETWEEN
ANGELA MAREE SAUNDERS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 June 2017

Appearances:

K L Chalmers and P N Allan (via AVL) for Appellant
M A Mika for Respondent

Judgment:

26 June 2017

JUDGMENT OF NICHOLAS DAVIDSON J

This appeal

[1] The appellant pleaded guilty to charges of: theft under $500, theft over

$1000, possession for supply of morphine, making a false statement, and fabricating evidence.

[2] She was sentenced by Her Honour Judge Cook in the District Court on

19 December 2016 to two years imprisonment in total on all charges.1

[3] The appeal is mounted on the ground the sentence is manifestly excessive in itself, and against the refusal to impose home detention.

1 Police v Saunders [2016] NZDC 26076.

SAUNDERS v NEW ZEALAND POLICE [2017] NZHC 1433 [26 June 2017]

Principles on appeal

[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and determined in accordance with s 250 of that Act. This Court may only allow the appeal if it is satisfied that there has been an error in the imposition of the sentence, and if so that a different sentence should be imposed.2 Toogood J put this position (citing Ripia v R3) in Larkin v Ministry of Development:4

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5

the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[6] The discretion whether to impose home detention is not unfettered,7 but as the decision not to do so was in the exercise of discretion,8 an appeal should be allowed only if the Judge made an error of law or principle, took into account irrelevant considerations or failed to take into account relevant considerations, or was plainly wrong.9 The Notice of Appeal pleads all of these alleged errors.

District Court sentencing

Offending

[7] The most serious and thus lead offending was making a false statement and fabricating evidence.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).
3      Ripia v R [2011] NZCA 101 at [15].
4      Larkin v Ministry of Development [2015] NZHC 680.
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 At [36].
7      Manikpersadh v R [2011] NZCA 452 at [12].
8      Wong v R [2009] NZSC 64.
9      Dodds v R [2011] NZCA 490 at [27]; Herera v R [2011] NZCA 491.

[8] The appellant…

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 Saunders v Police

Details

AGLC: Saunders v Police [2017] NZHC 1433
Case: [2017] NZHC 1433
Decision Date: 26 June 2017

CaseChat Overview and Summary

Saunders appealed against her sentence for theft, possession for supply of morphine, making a false statement, and fabricating evidence. The District Court Judge sentenced Saunders to two years imprisonment. The appeal was against the sentence being manifestly excessive and the refusal to impose home detention. The High Court noted that appeals against sentence are governed by s 244 of the Criminal Procedure Act 2011. The Court can only allow the appeal if there has been an error in the imposition of the sentence. The Court found that the starting point of 14 months imprisonment for theft, and in particular that the Judge regarded this as premeditated offending, was within range. The allowances for discounting factors were orthodox and there was no reason to allow the appeal on this ground. The Court was concerned that the least restrictive sentence should not have application for this young woman, now with three children, and with a history of abuse and personal disturbance. The Judge was aware of all the mitigating factors relating to the appellant and her circumstances. The end sentence was just short enough to allow consideration of home detention. The appellant's circumstances, including pregnancy and the potential care of children, were clearly in the Judge’s contemplation. They had to be balanced against what was serious and long-term offending, and where there was a clear need to denounce and deter. The Court found that the sentencing called for the careful exercise of discretion and there is nothing to suggest that anything other than that occurred. In these circumstances, there were no grounds for this Court to interfere with the exercise of discretion.

The appeal was dismissed.

Orders