Legal Research
Cases
T v Police

T v Police

Case [2019] NZHC 3375 18 December 2019

Criminal Liability

Sentencing

Breach of Trust

Unconscionable Conduct

Specific Performance

Admissibility of Evidence

Contempt of Court

Criminal Law

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version please follow this link

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-000040

[2019] NZHC 3375

BETWEEN
T

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2019

Appearances:

W R Hawkins for the Appellant L M Marshall for the Respondent

Judgment:

18 December 2019

JUDGMENT OF DOOGUE J

Introduction

[1] On 20 September 2019, the appellant, Mr T, appeared for sentence before Judge Sygrove in the District Court at Hastings, having pleaded guilty to one charge of strangulation,1 one charge of assault with intent to injure,2 two charges of breaching release conditions3 and one charge of intimidation.4 Mr T was sentenced to three years’ imprisonment.5

1      Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.
2      Section 193; maximum penalty three years’ imprisonment.
3      Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment or a fine not exceeding
$2,000.
4      Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
5      Police v T [2019] NZDC 18953.

T v NEW ZEALAND POLICE [2019] NZHC 3375 [18 December 2019]

[2] Mr T appeals his sentence on the basis it was manifestly excessive, a contention opposed by the Crown.

Background

[3] The charges to which Mr T pleaded guilty occurred at two separate points in time: on 6 November 2018 and 3 January 2019.

Breach of release conditions

[4] On 22 August 2018, Mr T was released from Hawke’s Bay Regional Prison after having been sentenced to six months’ imprisonment on 18 July 2018 for a number of property-related offences. He was subject to special release conditions for nine months and three days, one of which was to not move to a new residential address without the prior approval of a probation officer. Mr T signed a document acknowledging he understood these conditions.

[5] On 6 November 2018, Mr T’s probation officer unsuccessfully attempted to contact him several times. A home visit was conducted. The unit where Mr T was supposed to be residing was empty. This gave rise to the charges of breaching release conditions.

The other charges

[6] At around 5:30 a.m. on 3 January 2019, Mr T and the victim were at an address in Camberley, Hastings. At that stage, the pair had been in a nine-year relationship. They have two children together.

[7] The victim got up to take her dogs for a walk. The victim returned an hour later and found that Mr T had been using drugs, namely synthetic cannabis. The victim had recently decided to stop using synthetic cannabis.

[8] Upon finding Mr T in this situation, the victim became upset and asked him to leave. The victim’s flatmate told the victim to leave the address in order to calm down. She did so, going to a nearby…

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 [2019] NZHC 3375
Case: [2019] NZHC 3375
Decision Date: 18 December 2019

CaseChat Overview and Summary

Mr T appeals his sentence of three years’ imprisonment on the basis it was manifestly excessive. The Crown opposes the appeal. The appeal was heard in the High Court at Napier on 17 December 2019 and judgment was delivered on 18 December 2019. The key legal issue is whether the starting point adopted by the District Court Judge was too low. Mr T submits that the starting point was too low because the Judge placed too much emphasis on sentencing bands in Ackland v Police, which provide guidance on sentencing for strangulation. The Crown submits that the starting point was appropriate given the aggravating factors in this case. The Court held that the starting point adopted by the District Court Judge was lenient in light of the circumstances, particularly the domestic violence context and the overall severity of the offending. The Court held that the Judge was not necessarily to be criticised for this given both prosecution and defence counsel submitted that a starting point of three years’ imprisonment was appropriate based on a rigid interpretation of Ackland. It does, however, show the dangers of applying culpability factors and sentencing bands in an overly mechanistic manner. This is something to which the courts should be alert given the potentially fatal consequences of intimate partner violence, particularly where strangulation is concerned. The appeal was dismissed. Mr T’s name and identifying particulars were suppressed pursuant to s 200(2)(c) of the Criminal Procedure Act 2011.

Orders