Sweeney v Police - [2017] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000021 [2017] NZHC 1330

BETWEEN
CLAYTON JAMES SWEENEY

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 15 June 2017

Appearances:

M Starling forAppellant
C J Bernhardt for Respondent

Judgment:

16 June 2017

JUDGMENT OF GENDALL J

Introduction

[1] On 9 December 2016, the appellant was sentenced by Judge Saunders in the District Court at Christchurch on eight charges in respect of three separate incidents of offending. These included: wilful damage (of an EM bracelet) and associated breach of release conditions; possession of cannabis; making a false declaration to
police; theft over $1,000; common assault;1 aggravated assault; and providing false

particulars to police.

[2] Taken together, these charges resulted in an end sentence of 25 months’

imprisonment and an order for $1,748 reparation (for the destruction of the

EM bracelet), to take effect upon the appellant’s release.

1 Judge Saunders refers to this as a “Summary Offences” assault, although all the charge sheet
documents indicate that it was laid as common assault under s 196 of the Crimes Act 1961.

SWEENEY v NEW ZEALAND POLICE [2017] NZHC 1330 [16 June 2017]

[3] The appellant has abandoned the aspect of his original appeal relating to conviction. He now appeals only against sentence.

Principles on appeal

[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2

[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said (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.

[6] 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.

District Court decision

[7] In his decision, Judge Saunders began by outlining the various brackets of offending for which the appellant would be sentenced. The first was the “parole”
offending occurring in May 2016, which included non-compliant departure from the

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 Sweeney v Police

Details

AGLC: Sweeney v Police [2017] NZHC 1330
Case: [2017] NZHC 1330
Decision Date: 16 June 2017

CaseChat Overview and Summary

Clayton James Sweeney appeals against his sentence imposed by the Christchurch District Court. Sweeney was sentenced on eight charges relating to three separate incidents of offending, which included wilful damage, possession of cannabis, making a false declaration, theft, common assault, aggravated assault and providing false particulars to police. The appellant challenges the imposition of a 25-month imprisonment sentence. Sweeney submits that the Judge erred in treating the theft charge and the assault charges, which arose from the same incident, as separate sets of offending warranting their own cumulative sentences. The respondent submits that the primary focus on appeal is on the end sentence and whether it is manifestly excessive. The Court considers that Judge Saunders was correct to treat the separate instances of offending in a cumulative way for sentencing purposes. Each involved an unconnected series of offences, which occurred at different times and were different in kind. Although it is less clear that the Judge should have chosen to treat the assault and theft components of the "Warehouse" offending in a cumulative manner, the decision to treat these offences cumulatively is not, in itself, a reviewable error in the sentencing exercise. The Court is satisfied that the sentence imposed overall was within range. On balance, and having regard to the offending in this case, the appellant's history and analogous authority, the Court considers that the end sentence of 25 months, whilst towards the top end of the available range, was nevertheless within range. The appeal is dismissed.

Orders