Vernall v The King - [2024] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-37

CRI-2024-404-38 [2024] NZHC 991

BETWEEN
MATTHEW JAMES VERNALL

Appellant

AND

THE KING

Respondent

Hearing: 29 April 2024

Counsel:

M W Ryan for Appellant D Becker for Respondent

Judgment:

30 April 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 30 April 2024 at 11.30 am

Registrar/Deputy Registrar

Solicitors/Counsel:
Mark Ryan (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

VERNALL v R [2024] NZHC 991 [30 April 2024]

Introduction

[1] Mr Vernall appeals the sentence of 16 months’ imprisonment imposed upon him by Judge J M Jelaš on 19 December 2023.¹ Mr Vernall does not challenge the sentence as being manifestly excessive. His ground of appeal is that the Judge was obliged to grant him leave to apply for home detention.²

[2] Mr Vernall pleaded guilty to charges of unlawfully using a motor vehicle, unlawful possession of a firearm, breaching a protection order and driving a motor vehicle while his licence was suspended (third or subsequent occasion).

[3] I do not need to go into factual detail given Mr Vernall’s acceptance that the end sentence of 16 months’ imprisonment was available to the Judge, subject to the appeal ground that leave should have been granted to apply for home detention. I will say that the offending was concerning since Mr Vernall was found driving a stolen motor vehicle to which was affixed number plates stolen from a second vehicle. He had with him in the car a pistol and a magazine containing five live rounds.

[4] Mr Ryan, for Mr Vernall, submits that Judge Jelaš wrongly refused to adjourn so that a home detention suitability report could be obtained.³ The issue of home detention was before the Judge and her Honour was aware, through an earlier EM bail report, that Mr Vernall’s parents’ address was available and suitable. The Judge did not consider the availability of a rehabilitation centre as an address.

Discussion

[5] For the appeal to succeed Mr Ryan must show an error on the part of the Judge such that a different sentence should be imposed.

[6] The insurmountable difficulty for Mr Vernall’s appeal is that the Judge did not refuse home detention on the basis that there was no suitable address available but on

1      R v Vernall [2023] NZDC 28724.
2      The notice of appeal specified the grounds of appeal as being error on the part of the Judge by sentencing Mr Vernall to imprisonment and declining Mr Vernall’s application to adjourn his sentencing hearing. Before me, the ground was refined.
3      Mr Ryan also wanted time to obtain a s 27 report, but that is not of moment in the appeal.

the basis that Mr Vernall’s offending, and his criminal history, meant that imprisonment was the least restrictive option available as a sentence.

[7] With that conclusion, the Judge could not grant Mr Vernall leave to subsequently apply for home…

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 Vernall v The King

Details

AGLC: Vernall v The King [2024] NZHC 991
Case: [2024] NZHC 991
Decision Date: 30 April 2024

CaseChat Overview and Summary

Matthew James Vernall appeals the 16-month imprisonment sentence imposed by Judge J M Jelaš on 19 December 2023. Vernall argues that the judge should have granted him leave to apply for home detention. He pleaded guilty to charges of unlawfully using a motor vehicle, unlawful possession of a firearm, breaching a protection order, and driving while his licence was suspended for a third or subsequent occasion. Vernall's parents' address was known to be available and suitable for home detention, but the judge concluded that imprisonment was the most appropriate sentence due to Vernall's criminal history and the nature of the current offending.

The primary legal issue in this appeal is whether the trial judge made an error in not granting Vernall leave to apply for home detention. For the appeal to succeed, Vernall must demonstrate that the judge made an error that would warrant a different sentence. The appeal hinges on whether the judge's decision to impose imprisonment was based on an error of law or a misunderstanding of the facts.

The court found that the judge did not refuse home detention because there was no suitable address available; instead, the judge believed that imprisonment was the most appropriate sentence given Vernall's offending and criminal history. Section 80I of the Sentencing Act 2002 mandates that if a court sentences an offender to a short-term imprisonment and would have sentenced them to home detention if a suitable residence had been available, the court must grant leave to apply for home detention if a suitable residence is found later. However, in this case, the judge did not consider home detention appropriate, and therefore, Section 80I did not apply. The judge's decision was based on Vernall's longstanding drug dependency, anti-social factors, and poor compliance with electronically monitored bail.

The court concluded that the judge's decision was justified given the circumstances of the offending and Vernall's criminal history. The appeal is dismissed.

Orders