Vickery v Police - [2019] NZHC 1315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-255

[2019] NZHC 1315

BETWEEN
TIMOTHY DONALD VICKERY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 June 2019

Appearances:

P S Chamberlain and N D Bond for the Appellant M J Mortimer for the Respondent

Judgment:

11 June 2019

ORAL JUDGMENT OF PALMER J

Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland

VICKERY v NEW ZEALAND POLICE [2019] NZHC 1315 [11 June 2019]

What happened?

[1] Mr Timothy Vickery is a 27-year-old Australian citizen who had a New Zealand partner for several years in Australia. She returned to New Zealand when she became pregnant. Mr Vickery moved to New Zealand to be with her on 26 January 2019 after he was released from prison in Western Australia. He had a lengthy criminal history there including nine convictions for violence and six driving-related convictions.

[2] On 2 February 2019, Mr Vickery began drinking heavily. His presence in a paddock apparently agitated a new horse, leading his partner to ask him to get out of the paddock. He argued with his partner. He yelled abuse at her and threatened to break her jaw, once if she did not leave him alone and once when she refused to give him quad-bike keys. He also threatened to get a shot-gun and shoot her in the chest. When she gave him the keys he went fishing and she left. He came back to find they were gone and took a car owned by his partner’s mother without permission. He was stopped by the Police driving erratically. He told them to “get fucked” and tried to drive around them but was blocked. He tried to escape, did not and was found to be at twice the legal breath alcohol limit. He was charged with unlawfully taking a motor vehicle, driving with excess breath alcohol and intimidating behaviour. He pleaded guilty.

[3] In her original unsigned victim impact statement, Mr Vickery’s partner is reported to have said he is addicted to methamphetamine, heroin and cannabis and has assaulted her in the past. She is said to have requested a protection order against him, for her and her son. She and Mr Vickery are now separated but he apparently wishes to remain in New Zealand. He explained to the Department of Corrections that he was drinking that day to cope with withdrawal from methamphetamine which he began using from the age of 19 until he was 26. Corrections recommended a sentence of imprisonment with leave to apply for home detention at a residential rehabilitation facility.

Decision under appeal

[4] In sentencing Mr Vickery on 16 May 2019, Judge A-M J Bouchier considered a sentence of imprisonment was appropriate.1 She set a starting point of six months’ imprisonment for dishonestly taking a motor vehicle, uplifted it by three months for the intimidating behaviour and excess breath alcohol and by another three months for his previous convictions. She gave a discount of…

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 Vickery v Police

Details

AGLC: Vickery v Police [2019] NZHC 1315
Case: [2019] NZHC 1315
Decision Date: 11 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Timothy Donald Vickery appealed against his sentence for unlawfully taking a motor vehicle, driving with excess breath alcohol, and intimidating behaviour. Vickery, an Australian citizen with a lengthy criminal history, had moved to New Zealand and engaged in a series of violent and threatening behaviours towards his partner. The District Court Judge sentenced Vickery to nine months’ imprisonment. Vickery appealed, arguing the sentence was manifestly excessive. The appeal hinged on whether the sentence was within the available range, focusing on the starting point for the motor vehicle offence, the uplift for the secondary charges and previous convictions, and the appropriateness of the alcohol interlock order. The Police did not oppose the appeal in respect of the alcohol interlock order but defended the overall sentence.

The Court considered whether the District Court Judge had erred in setting the starting point and the uplifts for the secondary charges and previous convictions. The Crown argued that the starting point was low given the aggravating factors and that the uplifts were justified. Vickery’s counsel contended the starting point should have been lower and the uplifts were disproportionate. The Court found that the starting point was within the available range and the uplifts, while high, did not render the overall sentence manifestly excessive. The Court also found that the alcohol interlock order was inappropriate given Vickery’s inability to pay a fine and should be replaced with a disqualification from holding or applying for a driver’s licence for six months. The Court further upheld the concurrent three-month sentence for intimidation but reduced the concurrent three-month sentence for excess breath alcohol to one month.

The Court upheld the appeal in part, quashing the alcohol interlock order and reducing the concurrent sentence for excess breath alcohol. It dismissed the appeal in all other respects. The Court found that the overall sentence of nine months’ imprisonment was not manifestly excessive and that the protection order was justified to protect the victim.

Orders