Ward v The Queen - [2011] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

CA603/2010
[2011] NZCA 44

BETWEEN JASON BLAIR WARD
Appellant

AND THE QUEEN
Respondent

Hearing: 23 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: R Ord for Appellant
C A Brook for Respondent

Judgment: 4 March 2011 at 11 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed, but only to the extent that the order remitting the appellant’s fines and enforcement fees totalling $26,618 and substituting two months imprisonment is quashed. The appellant’s fines and enforcement fees are reinstated.
BIn all other respects the appellant’s sentence stands.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

On 19 August 2010 Judge Zohrab sentenced the appellant, Mr Ward, to two years and nine months imprisonment for a range of offending. The Judge also remitted fines and enforcement fees totalling $26,618 and imposed an additional two months imprisonment in recognition of that. Finally, the appellant was disqualified from driving for a period.[1]
[1] R v Ward DC Nelson CRI-2009-042-4913, 19 August 2010.
The offending at issue occurred on four dates:
(a)8 July 2009: Wilfully damaging a breath alcohol testing device and refusing to give a blood specimen;
(b)30 September 2009: Two charges of wilfully damaging police property (a suicide blanket and a breath alcohol testing device), one charge of driving with an excess blood alcohol level (having committed two or more previous offences) and one charge of sustained loss of traction;
(c)26 April 2010: Failing to answer to bail;
(d)15 June 2010: Two charges of threatening to injure, one charge of possession of an offensive weapon (a knife) and another of threatening to damage a person’s property with intent to frighten them.

The offences following those committed on 8 July 2009 were committed while Mr Ward was on bail, one of the conditions of which was that he not drive a vehicle.

The appellant appeals against the sentence of two years nine months imprisonment. He does not dispute that cumulative sentencing was appropriate but argues that the overall sentence was excessive because it failed to take into account the fact that no serious harm was caused by the offending. The appellant says that any risk of harm flowing from his conduct could have been met by the imposition of a sentence of home detention in a rehabilitation centre.
The Crown accepts that the appeal must succeed to the extent that the Judge imposed a further two months imprisonment to reflect the remission of the fees and fines. This is because it appears that the Judge did not follow the required procedure for remission[2] and, in any event, this Court has held that a sentencing judge may not remit fines for unrelated offending.[3] Accordingly, the fines must be reinstated and the sentence of two months imprisonment imposed in substitution must be quashed.

Background

[2]See Summary Proceedings Act 1957, s 88(3)(h), Crimes Act 1961, s 19D and R v Brown [2009] NZCA 288 at [28]–[29].

[3] R v Gebbie CA452/04, 2 March…

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 Ward v The Queen

Details

AGLC: Ward v The Queen [2011] NZCA 44
Case: [2011] NZCA 44
Decision Date: 4 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Jason Blair Ward, appealed against his sentence of two years and nine months imprisonment imposed by Judge Zohrab on 19 August 2010 for a series of offences. These included damaging a breath alcohol testing device, refusing to give a blood specimen, driving with an excess blood alcohol level, driving while disqualified, failing to answer to bail, and threatening to injure with an offensive weapon. The Crown accepted that the Judge imposed a further two months imprisonment to reflect the remission of fines and enforcement fees, which was improper because the Judge did not follow the required procedure for remission, and the Court had held that a sentencing judge may not remit fines for unrelated offending. The Court allowed the appeal only to the extent that the order remitting the appellant's fines and enforcement fees and substituting two months imprisonment was quashed. The outstanding fines and enforcement fees were accordingly reinstated. In all other respects, the appellant's sentence stood.

The legal issues before the Court were whether the appellant's sentence of two years and nine months imprisonment was excessive and whether the Judge was entitled to remit fines and enforcement fees. The Court found that the sentence was within the range available to the Judge and that the Judge was not entitled to remit fines and enforcement fees for unrelated offending. The Court rejected the appellant's argument that he should have been given a term that would have permitted "back end" home detention in order to enable him to address the causes of his offending. The Court noted that the appellant's offending went well beyond that of a "pest," and that there was no basis on which the Judge could properly have imposed a sentence of home detention given the nature of the offending and the appellant's poor record of compliance with community-based sentences.

In conclusion, the Court allowed the appeal only to the extent that the order remitting the appellant's fines and enforcement fees and substituting two months imprisonment was quashed. The outstanding fines and enforcement fees were reinstated. In all other respects, the appellant's sentence stood. The Court's decision was based on the totality of the offending and the appellant's history of non-compliance with community-based sentences. The Court found that the sentence imposed was appropriate and within the range available to the Judge.

Orders