Tett v The King - [2023] NZHC 2568

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-20

[2023] NZHC 2568

BETWEEN
CHRISTOPHER TETT

Appellant

AND

THE KING

Respondent

Hearing: 14 September 2023

Appearances:

Appellant in person

H Bullock for the Respondent

Judgment:

14 September 2023

ORAL JUDGMENT OF PALMER J

Solicitors
C&M Legal, New Plymouth

TETT v R [2023] NZHC 2568 [14 September 2023]

What happened?

[1] On 22 February 2021, Mr Christopher Tett, now aged 39, had an argument with a then 14-year-old girl. He grabbed her arm, pushed her around a kitchen bench, put her arm behind her back and pulled her hair. He held her face down and put his weight on the back of her legs, releasing his grip after two minutes. Mr Tett was charged with, and pleaded guilty to, assault, for which the maximum penalty is one year’s imprisonment.1

[2] On 29 June 2022, Judge G F Hikaka sentenced Mr Tett in the District Court at New Plymouth.2 The Judge sentenced Mr Tett to nine months’ supervision and four months’ community detention, requiring him to attend a non-violence programme and not to have contact with a girl without prior written approval.

[3]Mr Tett breached the conditions of this sentence several times:

(a)On 10 August 2022, he produced a positive result on a drug test for methamphetamine, breaching a special condition of supervision.

(b)On 13 October 2022, he was convicted and discharged for breaching a condition of supervision, for that drug test failure. He was given a final written warning for failing to report to a Probation Officer, having previously received a verbal and written warning.

(c)On 9 November 2022 (though it may have been 9 September 2022) he failed to report to a Probation Officer as directed.

(d)On 16 November 2022, he failed to attend the second part of his assessment for the non-violence programme.

(e)On 30 November 2022, he failed to report to a Probation Officer as directed.

1 Crimes Act 1961, s 196.
2 R v Tett [2023] NZDC 25200.

[4] The maximum penalty for breaching supervision is three months’ imprisonment or a $1,000 fine.3 On 16 December 2022, Mr Tett was charged with, and on 21 December 2022 he pleaded guilty to, three charges of breaching the conditions of his supervision. The Department of Corrections applied under s 54(1)(a) of the Sentencing Act 2002 to have Mr Tett’s sentence of supervision cancelled and substituted with a sentence of imprisonment.

[5] On 22 June 2023, Judge A S Greig re-sentenced Mr Tett for assault and sentenced him for the three breaches of supervision.4 In its pre-sentence report, Corrections advised that Mr Tett’s previous compliance with community-based sentences had been “abysmal” and recommended imprisonment. The Judge noted this, and Corrections’ advice that Mr Tett had been extremely difficult to manage on sentence and had been aggressive at Court as well as at Community Corrections. Mr Tett disputed this, as the Judge also noted.5 The Judge did not identify a starting point…

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 Tett v The King

Details

AGLC: Tett v The King [2023] NZHC 2568
Case: [2023] NZHC 2568
Decision Date: 14 September 2023

CaseChat Overview and Summary

In this case, Christopher Tett, the appellant, was convicted and sentenced by the District Court for assault on a 14-year-old girl, for which he was given a sentence of nine months’ supervision and four months’ community detention. Following multiple breaches of the supervision order, the Department of Corrections applied for a re-sentencing under the Sentencing Act 2002. Judge A S Greig re-sentenced Mr Tett to three months’ imprisonment for the assault, and an additional one month of imprisonment for each of the three breaches of supervision, to be served cumulatively. Mr Tett appeals against the cumulative nature of the sentences for breach of supervision, arguing that they are manifestly excessive.

The central legal issue in this case is whether the cumulative sentences imposed for the breaches of supervision are manifestly excessive. The court considered whether the breaches of supervision were different in kind and not a connected series of events, and whether the cumulative sentences resulted in a total period of imprisonment that was out of proportion to the gravity of the overall offending. The court noted that the breaches of supervision were not different in kind, as they were all related to the same supervision order and had the purpose of enforcing court orders.

The court held that the cumulative sentences for the breaches of supervision were manifestly excessive, as they effectively doubled Mr Tett's sentence of imprisonment. The court found that the sentences for the breaches of supervision must be imposed concurrently, not cumulatively, as they were all connected offences with the purpose of enforcing the same court order. The total sentence of six months’ imprisonment was manifestly excessive by a third, and should be substituted by concurrent sentences for the three breaches of supervision.

Palmer J upheld the sentence of three months’ imprisonment for assault, quashed the three sentences of one month’s imprisonment for each breach of supervision to be served cumulatively, and substituted them with three sentences of one month’s imprisonment for each breach of supervision to be served concurrently. So, the total length of Mr Tett’s sentence for these offences is therefore now four months’ rather than six months’ imprisonment.

Orders