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T v Police

T v Police

Case [2024] NZHC 1859 9 July 2024

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 203 AND S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000036

[2024] NZHC 1859

BETWEEN
“T”

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 July 2024

Appearances:

C S Taylor for Appellant

C H B Megala for Respondent

Judgment:

9 July 2024

Reissued:

7 August 2024

JUDGMENT OF ANDERSON J

This judgment was reissued by me on 7 August 2024 at 3.00 pm.

……………………..
Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip Smith, Crown Solicitor, Whangarei

“T” v NEW ZEALAND POLICE [2024] NZHC 1859 [9 July 2024]

Introduction

[1] Mr T (the appellant)1 pleaded guilty to charges of strangulation,2 assault with a weapon,3 assault with intent to injure4 and assault on a person in a family relationship.5 Judge P Rzepecky sentenced him to 25 months’ imprisonment.6

[2] Mr T appeals his sentence on the grounds that the Judge erred in imposing an uplift of 10 per cent (3.6 months) for his previous convictions. He submits that this uplift resulted in a manifestly excessive sentence that placed him out of the range where home detention could be considered.

[3] The respondent submits the uplift was well within the available range and the overall sentence was not manifestly excessive.

Approach on appeal

[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.7 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.8

[5] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. Nor will it artificially tailor a sentence to bring it within the range where home detention is available.9

1      The appellant’s name has been anonymised throughout this judgment, despite it not being suppressed, because identifying the appellant by name would risk breaching the complainant’s protections under ss 203 and 204 of the Criminal Procedure Act 2011 due to the nature of the offending and his relationship with the complainant. See H v R [2019] NZSC 69, j[2019] 1 NZLR 675 at [54]-[58].
2      Crimes Act 1961, s 189A(b).
3      Section 202C.
4      Section 193.
5      Section 194A.
6      Police v T [2024] NZDC 8972.
7      Criminal Procedure Act 2011, s 250(2).
8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
9      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35] citing R v Edwards [2006] 3 NZLR 180 (CA) at [24].

[6] The focus is on the end result rather than the process by which the sentence was reached.10 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).11

The offending

[7] Mr T and…

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 T v Police

Details

AGLC: T v Police [2024] NZHC 1859
Case: [2024] NZHC 1859
Decision Date: 9 July 2024

CaseChat Overview and Summary

In this case, Mr T, the appellant, challenged the sentence imposed by Judge P Rzepecky in the District Court, which was 25 months' imprisonment for various serious offences, including strangulation, assault with a weapon, and assault on a person in a family relationship. The appeal was focused on whether the Judge erred in applying a 10 per cent uplift for Mr T's previous convictions, which the appellant argued resulted in a manifestly excessive sentence.

The legal issues before the court were whether the uplift for previous convictions was justified and whether the sentence was manifestly excessive. The court noted that while uplifts for previous convictions are permissible if they indicate a tendency to commit similar offences, they must be proportionate to the gravity of the previous and current offending. The court also considered whether the overall sentence, despite the uplift, was within an acceptable range and not manifestly excessive.

The court found that some uplift was warranted due to Mr T's history of family violence, particularly the assault on his son, but concluded that a 10 per cent uplift was too high. By comparing with other cases, the court determined that a five per cent uplift would have been more appropriate. Despite this error, the court held that the overall sentence was not manifestly excessive given the gravity of the current offences and the appellant's history of violence. The court thus dismissed the appeal.

The final orders of the court were that the appeal against the sentence was dismissed.

Orders