Sullivan v Police - [2019] NZHC 284

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000124

[2019] NZHC 284

BETWEEN
MICHAEL RAMEKA ERU SULLIVAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 February 2019

Appearances:

A Bailey for Appellant

R Harcourt for Respondent

Judgment:

27 February 2019

JUDGMENT OF OSBORNE J

Introduction

[1] The appellant, Michael Sullivan, was found guilty of three charges on 26 August 2018, relating to separate incidents:

(a)30 September 2016: injuring with intent to injure and breaching a protection order;

(b)7 July 2017: male assaults female and breaching a protection order; and

(c)17 July 2017: male assaults female and breaching protection order.

SULLIVAN v NZ POLICE [2019] NZHC 284 [27 February 2019]

[2] Mr Sullivan was sentenced by Judge Garland on 2 November 2018 to an effective term of imprisonment of two years and three months.1 He appeals that sentence on the basis it was manifestly excessive and that a period of home detention should have been imposed.

District Court decision

[3] Judge Garland decided to impose cumulative sentences, overlaid by the totality principle. He explained that this was because there were three separate and discrete sets of offending. The reduction for totality was governed by s 85(2) Sentencing Act 2002, which provides:

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

30 September 2016

[4] Commencing with the offending on 30 September 2016, the Judge noted that the tariff case is Nuku v R.2 In Nuku Glazebrook J delivering the judgment of the Court of Appeal, identified three bands applicable to offending under ss 189(2), 188(2) and 191(2) Crimes Act 1961 (where the offending involves intent to injury).3 The bands are:4

(a)Band one – four aggravating factors, relatively low level violence, culpability better related on a less serious charge: sentence less than imprisonment can be appropriate.

(b)Band two – three or fewer of the aggravating factors listed in R v Taueki.5 A starting point of up to three years can be appropriate.

1      Police v Sullivan [2018] NZDC 22816.
2      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 At [37].
4 At [38].
5      R v Taueki [2005] 3 NZLR 372 (CA).

(c)Band three – three or more of the Taueki factors, with the combination of features being particularly serious: a starting point of two years up to the statutory maximum will apply.

[5] Judge Garland noted the aggravating features of Mr Sullivan’s offending as being:

(a)serious violence;

(b)threats to the victim;

(c)attack to the head with punches and stranglehold on neck;

(d)use of a weapon (a kettle), albeit one that was unlikely to lead to lethal consequences;

(e)vulnerability of the victim who was reliant on a police safety order and protection order; and

(f)impact on the victim, involving both physical injuries and emotional harm.

[6] Judge Garland…

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 Sullivan v Police

Details

AGLC: Sullivan v Police [2019] NZHC 284
Case: [2019] NZHC 284
Decision Date: 27 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Michael Sullivan appealed against his sentence for three charges of assault and breach of protection orders. Judge Garland sentenced Sullivan to an effective term of two years and three months, which Sullivan argued was manifestly excessive and that a period of home detention should have been imposed instead. The appeal was based on the argument that the starting points for each set of offending were too high and that an overall starting point should have been taken.

The legal issues that the court had to decide were whether the starting points adopted by the Judge were appropriate, and whether the Judge should have adopted an overall starting point for the three offences. The court examined the starting points for each set of offending, and whether they were within an appropriate range. The court also examined whether the Judge should have taken an overall starting point for the three offences, and whether the Judge's cumulative approach was appropriate.

The court found that the starting points adopted by the Judge were appropriate, and that the Judge's cumulative approach was not flawed. The court noted that the offending in this case was more serious than in the cited cases of Hohua and Wallace, and that the starting points adopted by the Judge were within an appropriate range. The court also found that the Judge's cumulative approach was appropriate, as the offending involved three separate and discrete sets of offending.

The appeal was dismissed.

This case highlights the importance of considering the specific circumstances of each case when determining an appropriate starting point for sentencing. The court found that the starting points adopted by the Judge were appropriate, and that the Judge's cumulative approach was not flawed. This case also highlights the importance of considering the totality principle when imposing cumulative sentences, and the need to ensure that the sentence is not unjustifiably high.

Orders