Tutbury v Police - [2013] NZHC 2960

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000287 [2013] NZHC 2960

BETWEEN COLIN TUTBURY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 November 2013

Counsel: J Schlebusch for Appellant
R K Thomson for Respondent

Judgment: 8 November 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on 8 November 2013 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland.

TUTBURY v NZ POLICE [2013] NZHC 2960 [8 November 2013]

Introduction

[1] This is an appeal by Mr Tutbury against the sentence imposed upon him in the North Shore District Court on 17 September 2013.

[2] Mr Tutbury pleaded guilty to three counts: doing a threatening act; contravening a protection order; and male assaults female. Judge Collins fixed a starting point for all the offending of in total 13 months’ imprisonment. He declined to impose home detention or community detention. He gave a discount of one month because of the compliance with bail term conditions over a period of time, and a further discount of 25 per cent for guilty pleas, reducing the end sentence to nine months’ imprisonment. Mr Tutbury was to be subject to standard special post- release conditions, to apply for six months after the sentence expiry date.

[3] It is submitted by Mr Schlebusch for Mr Tutbury that the starting point was too high. He submitted that an appropriate starting point for the male assaults female and breach of protection order offending should have been three to six months, with an uplift of one to three months for the threatening act. In other words as I read his submission, he suggests that the maximum starting point that could have been properly imposed was nine months’ imprisonment. He took no issue with the discount, although he did submit that the Judge placed undue emphasis on negative issues in the pre-sentence report. He submitted that viewed in totality a fair sentence would have been a community based sentence.

Facts

[4] The facts are contained in two separate summaries of facts. One relates to the threatening acts charge and also included the related charge of unlawfully taking a motor vehicle. The second summary relates to the contravention of the protection order and male assaults female charges.

[5] The unlawful taking of a motor vehicle charge was not dealt with on sentencing and is to be considered in the District Court in Auckland in due course. This is unfortunate. It is preferable when a number of charges arise out of a single incident or a series of closely related incidents, that the sentencing for those counts

takes place at one time so that culpability can be considered in totality. I now have to consider culpability not taking into account the unlawful taking of a motor vehicle, and at some later date a Judge is going to have to consider that unlawful taking of a motor vehicle culpability on its own, but will face the difficulty that in assessing totality,…

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.

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Details

Case: [2013] NZHC 2960
Decision Date: 8 November 2013

CaseChat Overview and Summary

The case of Tutbury v Police involves an appeal by Mr Tutbury against the sentence imposed on him by the North Shore District Court. Mr Tutbury pleaded guilty to three counts: doing a threatening act, contravening a protection order, and male assaults female. The District Court Judge fixed a starting point of 13 months’ imprisonment, which was discounted by one month for compliance with bail conditions and 25 per cent for guilty pleas, resulting in a total sentence of nine months’ imprisonment.

The primary legal issue was whether the starting point of 13 months’ imprisonment was too high, and if so, whether a community-based sentence would have been more appropriate. The appellant argued that the starting point should have been three to six months for the male assaults female and breach of protection order charges, with an uplift of one to three months for the threatening act. The respondent argued that the starting point was appropriate given the nature of the offences and the appellant's history of similar offending.

The court considered the nature of the offences and the appellant's history of similar offending. The court found that while the appellant's prior convictions warranted an uplift, the starting point of 13 months was not out of range. The court also found that the appellant's attitude towards his offending and his lack of enthusiasm for rehabilitation programs made home detention or community detention inappropriate. The appeal was dismissed, and the original sentence was upheld.

In summary, the court found that the District Court Judge's assessment of the appellant's culpability and the appropriateness of the sentence was correct. The court found that the appellant's history of similar offending warranted an uplift, but the starting point of 13 months was not out of range. The court also found that the appellant's attitude towards his offending and his lack of enthusiasm for rehabilitation programs made home detention or community detention inappropriate.

Orders