Smith v Police - [2023] NZHC 2479

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-38

[2023] NZHC 2479

BETWEEN
JAPHETH PHILLIP SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 August 2023

Appearances:

Z S Meehan for the Appellant

H M L Farquhar for the Respondent

Judgment:

5 September 2023

JUDGMENT OF HARLAND J

Introduction

[1] Japheth Smith appeals the sentence of three years’ imprisonment imposed by Judge Tompkins on 23 June 2023.1 Mr Smith appeared before the Court for sentence in respect of five Crown charges, having pleaded guilty to two charges of male assaults female,2 one charge of assault with a weapon,3 one charge of carrying an imitation firearm4 and one representative charge of breaching a protection order.5 In addition, the sentence incorporated the appellant’s conviction following a separate Judge-alone trial where he was convicted of two charges of assault with a person in a family relationship and two charges of wilful damage.6

1      R v Smith [2023] NZDC 12983.
2      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
3      Section 202C; maximum penalty five years’ imprisonment.
4      Arms Act 1983, s 46; maximum penalty one years’ imprisonment.
5      Family Violence Act 2018, ss 90(b), 112(1)(a); maximum penalty three years’ imprisonment.
6      New Zealand Police v Smith [2022] NZDC 26186.

SMITH v POLICE [2023] NZHC 2479 [5 September 2023]

[2] Mr Meehan, appearing for the appellant, submitted the starting point for assault with a weapon was too high, as was the uplift for the Police charges and imitation firearm offending. Mr Meehan also contends the Judge erred by not allowing a deduction to reflect the appellant’s background.

[3] The Crown opposes the appeal, submitting the overall sentence was not manifestly excessive.

Principles on appeal

[4] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7

[5] As the Court of Appeal mentioned in Tutakangahau v R, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

The offending

[6] The appellant had been in a relationship with the victim for around six years. They are the parents of two young children aged one and three years old at the time of the 2022 offending.

2021 offending

[7] In early 2021, the appellant and the victim were at home. An argument developed. The appellant pushed the victim by shoving her neck area with his hand. He grabbed her by the hair, punched her in the forehead, demanded…

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 Smith v Police

Details

AGLC: Smith v Police [2023] NZHC 2479
Case: [2023] NZHC 2479
Decision Date: 5 September 2023

CaseChat Overview and Summary

Japheth Phillip Smith appeals against his sentence of three years’ imprisonment imposed by Judge Tompkins on 23 June 2023, following his convictions on various charges of assault, breach of a protection order, and carrying an imitation firearm. Smith, represented by Z S Meehan, argues that the starting point for the assault with a weapon was too high, as was the uplift for the police charges and imitation firearm offence. Meehan further contends that the Judge erred by not allowing a deduction to reflect Smith's background. The Crown, represented by H M L Farquhar, opposes the appeal, asserting that the overall sentence was not manifestly excessive.

The legal issues before the court were whether the starting point adopted for the lead offence was appropriate, whether the uplift for the police charges should be reduced, and whether a further discount was justified to reflect Smith's background. The court found that the starting point of three years’ imprisonment for the lead offence was unimpeachable, falling within the appropriate range. The court also found that the uplifts for the imitation firearm and police charges were entirely orthodox and appropriately applied. However, the court agreed that a further deduction ought to have been applied to reflect Smith's history and experience of violence as a child, and that this was an oversight on the part of the Judge. A small discount of five per cent was deemed appropriate.

The court ultimately found that, while the sentence was at the upper end of what was available, it was not manifestly excessive given the level of violence and lack of remorse shown by Smith, and the fact that he was sentenced for two sets of offending over three occasions. The appeal was dismissed.

Orders