Thomas v Police - [2020] NZHC 273

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2019-488-45

[2020] NZHC 273

BETWEEN
JUAN THOMAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2020

Appearances:

Appellant on own behalf

R Annandale for the Respondent

Judgment:

25 February 2020

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Whangarei Copy To: Appellant

THOMAS v POLICE [2020] NZHC 273 [25 February 2020]

Introduction

[1] The appellant, Juan Thomas, was sentenced to eight months’ home detention following conviction on two counts of assault by male on female1 (three months’ home detention) and three charges of burglary (five months’ home detention).2 He was convicted and discharged on a count of breach of community work, which had since been completed. Reparations of $1,050.00 were ordered to be paid to the victims of the burglaries.

[2] He now appeals against sentence on the grounds the sentence was manifestly excessive because the judge did not give sufficient weight to the period on EM bail and time in custody.

Factual background

[3] On the morning of 19 May 2018, Mr Thomas was at home with his then partner. At 9.10am, the police received a call from a concerned resident regarding a domestic incident occurring at Mr Thomas’ address. During the course of this incident, Mr Thomas was seen outside the house acting in an aggressive manner towards his partner, causing her to run away. Mr Thomas and his partner returned to the house together but she was later found by police in a distressed state cowering in the house. She had dried blood around her mouth and, following examination, was found to have a cut lip and bruising to her face, legs and arms.

[4] Mr Thomas was arrested and granted bail. A condition of his bail was that he was not to have contact with the complainant. On 18 August 2018, Mr Thomas was at her home. He had been showering and asked her to give him her phone so he could use it. She refused to do so and reminded him that he was not permitted to be at her house. Mr Thomas backed the complainant into a bedroom and blocked the exit. He threw an object against the wall before taking her by the neck and shoulders and pressing her to the ground. She received scratches to her neck and shoulder. Mr Thomas stood over her while she tried to protect herself. A third party at the house

1 Crimes Act 1961, s 194(b): maximum penalty of two years’ imprisonment.
2 Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years’ imprisonment.

intervened to stop the incident and Mr Thomas left the house. The complainant considered a protection order at this point but one was not pursued.

[5] The burglaries occurred on 1 August 2018 while Mr Thomas was on bail for the first assault and before the second assault. Along with two others, Mr Thomas burgled three properties. None of the victims know Mr Thomas.…

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 Thomas v Police

Details

AGLC: Thomas v Police [2020] NZHC 273
Case: [2020] NZHC 273
Decision Date: 25 February 2020

CaseChat Overview and Summary

The appellant, Juan Thomas, appeals against his sentence for multiple charges of assault and burglary, arguing that the eight months’ home detention imposed was manifestly excessive. Thomas claims that the District Court did not give sufficient weight to the time he spent on electronic monitoring bail and in custody. The Crown submits that the sentence was within the appropriate range. The High Court must determine if there is an error in the sentence imposed and, if so, whether a different sentence should be imposed.

In assessing the starting point for the assault charges, the Court considers that a six-month starting point for the two assaults, particularly the second which involved intimidating behaviour and breach of bail conditions, was appropriate. The severity of the offending was similar to that in Puata v Police. As to the burglary charges, the Court determines that 18 months’ imprisonment was within the range available to the Judge, given the moderate severity of the offending and the presence of planning.

The Court finds that the Judge took into account time spent on restrictive bail terms and imposed a sentence of home detention having assessed all relevant circumstances. The Court concludes that an eight-month home detention sentence for charges of some seriousness is not manifestly excessive. The appeal is dismissed.

The final orders of the Court are as follows: (1) The appeal is dismissed; and (2) Each party to bear their own costs.

Orders