Solicitor-General v Casey - [2016] NZHC 15

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000057 [2016] NZHC 15

BETWEEN
THE SOLICITOR-GENERAL

Appellant

AND

GERARD MICHAEL FRANCIS CASEY Respondent

Hearing: 10 December 2015

Appearances:

Z R Johnston for Appellant
H H Roose for Respondent

Judgment:

21 January 2016

JUDGMENT OF GILBERT J

This judgment is delivered by me on 21 January 2016 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel: Crown Law, Rotorua
H H Roose, Barrister, Rotorua

THE SOLICITOR-GENERAL v CASEY [2016] NZHC 15 [21 January 2016]

Introduction

[1] Having accepted a sentence indication given by Judge Bidois in the Rotorua District Court of a starting point of four years’ imprisonment, Mr Casey entered pleas of guilty and was convicted of the following charges arising out of offending over a five year period against four victims, all members of the same family:

(a)       Three charges of blackmail. (b) Two charges of assault.
(c)       One charge of assault with intent to injure. (d) One charge of criminal harassment.
(e)       One charge of wounding with intent to injure. (f)        One charge of threatening to kill.
(g)      One charge of intentional damage.

[2] On 1 September 2015, Judge L M Bidois sentenced Mr Casey to 10 months’

home detention, 400 hours’ community work and ordered him to pay reparation of

$21,738.96. The Judge adopted a global starting point for all matters of four years’ imprisonment, consistent with the sentence indication. He allowed a global discount of 16 months for Mr Casey’s guilty pleas, family support and good character. The Judge then applied a further discount of 14 months to take account of the seven month period Mr Casey had spent in custody on remand. He did this despite being advised by the prosecutor that this discount could not be allowed because s 82 of the Sentencing Act 2002 states that the Court must not take into account any period of pre-sentence detention in determining the length of the sentence.

[3] The Crown appeals against this sentence on the grounds that it is wrong in principle and manifestly inadequate.

Approach on appeal

[4] The appeal must be allowed if the Court is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed.1 In any other case, the appeal must be dismissed.2 The Court will not intervene if the end sentence is within the range that can properly be justified by following accepted sentencing principles.

Was the sentence wrong in principle?

[5] Section 15A(1) of the Sentencing Act limits the circumstances in which a sentence of home detention may be imposed. It provides:

15A Sentence of home detention

(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if –
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less
restrictive…

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 Solicitor-General v Casey

Details

AGLC: Solicitor-General v Casey [2016] NZHC 15
Case: [2016] NZHC 15
Decision Date: 21 January 2016

CaseChat Overview and Summary

The case of Solicitor-General v Casey involved an appeal by the Crown against the sentence imposed on Gerard Michael Francis Casey by Judge Bidois in the Rotorua District Court. Mr Casey was convicted of multiple charges arising from offending against four victims over a five-year period. These charges included blackmail, assault, assault with intent to injure, criminal harassment, wounding with intent to injure, threatening to kill, and intentional damage. The Crown appealed the sentence of 10 months' home detention, 400 hours' community work, and a reparation payment of $21,738.96, arguing that it was wrong in principle and manifestly inadequate.

The legal issues in this appeal centred on whether the sentence imposed was in error and whether a different sentence should be imposed. The court had to determine if the sentence was wrong in principle, specifically whether the sentence of home detention was appropriate under the circumstances, and if it was manifestly inadequate given the nature and severity of the offending.

The court found that the sentence was indeed wrong in principle because the judge had erred in imposing home detention instead of a term of imprisonment. The court noted that under Section 15A(1) of the Sentencing Act, a sentence of home detention can only be imposed if the court is satisfied that the purpose of the sentence cannot be achieved by any less restrictive sentence and that the court would otherwise sentence the offender to a short-term sentence of imprisonment. The court determined that the sentence of imprisonment that would otherwise be imposed was two years and eight months, which is not a short term and therefore home detention was not an available option. The judge also erred by taking into account the time Mr Casey had spent in custody pre-sentence, which is prohibited by Section 82 of the Sentencing Act. The court concluded that the sentence was wrong in principle and not in line with statutory requirements.

Regarding the adequacy of the sentence, the court found that although the sentence could have been higher, the starting point of four years' imprisonment was within the range that could properly be justified. The court compared the totality of the offending in this case with other cases and found that it was broadly comparable, thus justifying the starting point. Therefore, the appeal was allowed, the sentence was quashed, and a sentence of two years and eight months' imprisonment was imposed instead.

Orders