Valentine v Police - [2016] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000116 [2016] NZHC 400

BETWEEN
TONY DEXTER VALENTINE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 March 2016

Appearances:

N Hansen for Appellant
S E Burdes for Respondent

Judgment:

10 March 2016

JUDGMENT OF GENDALL J

Background

[1] On 17 June 2015, the appellant was sentenced in the District Court to

14 months’ imprisonment on one charge of drinking with excess breath alcohol third or subsequent offence.1 While the appellant was serving his prison term, on 29 July
2015, he was again called up before Judge Garland in the District Court on sentencing for five charges of obtaining a pecuniary advantage by deception and one charge of theft.2 He was sentenced to a further nine months’ imprisonment, to be served cumulatively on the 14 month term.

[2] The appellant now appeals against this nine months’ imprisonment sentence for the obtaining pecuniary advantage and theft charges on the basis that it is manifestly excessive in light of a change in circumstances related to a medical condition he has. The appellant contends that had the Judge in the District Court
considered his ill health and his need for significant back surgery, then either a

1 R v Valentine [2015] NZDC 11097.
2 R v Valentine [2015] NZDC 14785.

VALENTINE v NEW ZEALAND POLICE [2016] NZHC 400 [10 March 2016]

sentence of home detention would have been deemed appropriate, or, this second sentence would have been imposed concurrently and not cumulatively.

Jurisdiction

[3] The appellant is able to appeal the sentence imposed as of right.3 This Court, as first appeal Court,4 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.5 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6

Appeal out of time

[4] The present appeal was filed by the appellant on 19 November 2015, almost four months after this sentence was imposed. This is far in excess of the 20 working days allowed for the appellant to exercise his right of appeal against sentence.7
However, r 8.5 of the Criminal Procedure Rules states that “a notice that is given out of time must be treated as if it contains an application for extension of time.”8

[5] In this case, the Court has been guided by the Crown to relevant authorities relating to the grant of leave for appeals out of time.9 Having considered submissions on this aspect, I am prepared to grant leave on the basis that there are potential merits to the proposed appeal and to grant leave here would avoid any possible or potential miscarriage of justice. Furthermore, as I see it, granting leave would not unduly prejudice the Crown in…

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: [2016] NZHC 400
Decision Date: 10 March 2016

CaseChat Overview and Summary

Tony Dexter Valentine, the appellant, sought to appeal against a nine months’ imprisonment sentence imposed for obtaining a pecuniary advantage by deception and one charge of theft. The appellant had previously been sentenced to 14 months’ imprisonment for a charge of drinking with excess breath alcohol third or subsequent offence, which he was serving at the time of the second sentencing. The appeal was on the basis that the nine months’ imprisonment sentence was manifestly excessive due to a change in circumstances related to the appellant's medical condition. The appellant contended that had the Judge in the District Court considered his ill health and his need for significant back surgery, either a sentence of home detention would have been deemed appropriate, or, the second sentence would have been imposed concurrently and not cumulatively. The respondent submitted that the appellant's recourse was not to an appeal against sentence but an administrative application to the Parole Board under the Parole Act 2002 or the Corrections Act 2004. The Court found that there was no evidence of significant ill health at the time of sentencing and therefore, the Court could not be said to have erred in sentencing. The Court found that in circumstances where the appellant's health condition deteriorates after sentencing, the appropriate response was not one to lodge an appeal against that sentence. The appeal against sentence was dismissed.

Orders