Sergeant v Police - [2025] NZHC 360

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2024-483-17

[2025] NZHC 360

BETWEEN
SHAYNE SERGEANT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February 2025

Counsel:

S J Burlace for Appellant I Barfucci for Respondent

Judgment:

28 February 2025

JUDGMENT OF RADICH J

[Appeal against sentence]

[1] In a decision on 17 October 2024,1 Judge Marinovich imposed a sentence of 16 months’ imprisonment on Shayne Sergeant for three charges of driving while disqualified (third or subsequent),2 two charges of careless driving3 and one charge of failing to stop and ascertain injury.4 Mr Sergeant brings this appeal from that decision.

[2] The issue on appeal is whether the sentence should have been commuted to home detention. Ms Burlace submits that the Judge erred by not imposing the least restrictive outcome that is appropriate in the circumstances. She submits that the sentence reflects inadequate engagement with Mr Sergeant’s personal circumstances and undue weight being placed on his previous offending. In pursuing that

1      Police v Sergeant [2024] NZDC 25491 [Decision under appeal].
2      Land Transport Act 1998, s 32(4); maximum penalty of two years’ imprisonment or a fine not exceeding $6,000.
3      Section 37; maximum penalty of a fine not exceeding $3,000.
4      Section 35(1)(c); maximum penalty of three months’ imprisonment.

SERGEANT v NZ POLICE [2025] NZHC 360 [28 February 2025]

submission, leave to adduce further evidence of Mr Sergeant’s medical condition is sought.

[3] The Crown opposes the appeal on the basis there was no error by the Judge in the exercise of his discretion.

Leave to appeal out of time

[4] The appeal is out of time.5 I am satisfied that the circumstances which led to a delay of 16 working days in filing the notice of appeal are such that it is in the interests of justice for leave to appeal out of time to be granted. Mr Sergeant was proactive in his attempts to appeal his sentence but had difficulties in engaging with to counsel who were able to conduct the appeal. It was these problems that caused the delay.

Home detention

[5] A sentence of two years’ imprisonment or less may be commuted to home detention.6 Whether home detention is the appropriate sentence is a discretionary matter that is to be determined having regard to the purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act 2002. Under s 16(2) of the Act, the court must not impose a sentence of imprisonment unless it is satisfied that:

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[6] The court must have regard also to the desirability of keeping offenders in the community as far as that is practicable and consonant…

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 Sergeant v Police

Details

AGLC: Sergeant v Police [2025] NZHC 360
Case: [2025] NZHC 360
Decision Date: 28 February 2025

CaseChat Overview and Summary

Shayne Sergeant appeals against a sentence of 16 months' imprisonment imposed by Judge Marinovich for multiple driving offences, arguing that it should have been commuted to home detention. The appeal hinges on whether the sentencing judge erred in not imposing the least restrictive outcome appropriate to the circumstances. Sergeant's counsel argues that insufficient weight was given to his ongoing chronic health issues and his ability to rehabilitate under home detention. The Crown contends that the sentence was not manifestly excessive and that Sergeant's history of reoffending, despite previous rehabilitative sentences, underscores the need for deterrence and community protection.

The court notes that the appeal is out of time but grants leave to proceed, considering the circumstances of delay. The court examines whether the sentence of imprisonment was manifestly excessive in light of the purposes and principles of sentencing. It notes that home detention may be appropriate for sentences of two years or less, but the court must consider whether imprisonment is necessary to achieve the purposes of deterrence, denunciation, and community protection. The court finds no material error in the sentencing judge's exercise of discretion, as the judge appropriately considered the principles of sentencing and the need to protect the community given Sergeant's history of reoffending. While Sergeant's health issues are acknowledged, the court concludes that they do not outweigh the need for a punitive sentence to effectively denounce his conduct and deter him and others from similar offences. The appeal is dismissed.

Orders