Warren v Police - [2015] NZHC 136

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000102 [2015] NZHC 136

BETWEEN
VINCENT KERRY WARREN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2015

Appearances:

A James for Appellant
B Hawes for Crown

Judgment:

11 February 2015

JUDGMENT OF GENDALL J

Introduction

[1] On 27 June 2014 the appellant (Mr Warren), was found guilty1 on two counts of criminal harassment2 and one count of threatening to kill3 by His Honour Judge A D Garland in the District Court. This followed a defended hearing. On 6 August
2014 he was sentenced on these charges to five years’ imprisonment and a minimum

period of imprisonment (MPI) of three years four months was imposed.4

[2] Mr Warren now seeks leave to appeal out of time against both conviction and sentence. The notice of appeal discloses the following four specified grounds for the appeal:

1. That the sentence was manifestly excessive.

1      Police v Warren DC Christchurch CRI-2013-009-6828, 27 June 2014 [Trial Judgment].
2      Harassment Act 1997, s 81(a), each count carrying a maximum term of imprisonment of two years.
3      Crimes Act 1961, s 306, carrying a maximum term of imprisonment of seven years.
4      Police v Warren DC Christchurch CRI-2013-009-6828, 6 August 2014 [Sentencing Notes].

WARREN v NEW ZEALAND POLICE [2015] NZHC 136 [11 February 2015]

2. That I should not have been convicted on the threatening to kill charge. Evidence against me was unreliable.

3. Propensity evidence on other charges caused prejudice.

4. As self represented, I was at disadvantage.

[3] It has since been clarified that now Mr Warren appeals only his conviction in relation to the charge of threatening to kill and the resulting sentence imposed on him. Thus, ground 1 (noted at [2] above is limited to the threatening to kill count, and grounds 3 and 4 have effectively been abandoned.

Leave to appeal out of time

[4] Mr James, counsel who appeared before me for Mr Warren, explains that there had been approximately a one month delay in filing the notice of appeal. He says that this has caused no prejudice to the Crown and that, as the appeal prima facie has merit, the extension should be granted. He refers to Davis v Police in support of the leave application.5 The extension of time for the appeal is not opposed by the Crown. Given there is no objection by the Crown, the very short delay involved and the fact that there seems to be no prejudice resulting from this delay, I am willing to hear the appeal out of time and grant leave accordingly.

Jurisdiction

Conviction

[5] Mr Warren is able to appeal his conviction as of right.6 As first appeal Court, this Court must allow the appeal if it is satisfied that Judge Garland erred in his assessment of the evidence to such an extent that there is an error, irregularity or occurrence which has created a real risk that the outcome of the trial was affected, or
that…

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 Warren v Police

Details

AGLC: Warren v Police [2015] NZHC 136
Case: [2015] NZHC 136
Decision Date: 11 February 2015

CaseChat Overview and Summary

Vincent Kerry Warren sought leave to appeal out of time against both his conviction and sentence, as imposed by Judge A D Garland in the Christchurch District Court. The appeal was limited to the conviction and sentence imposed in relation to the charge of threatening to kill. The appeal against conviction failed, as the High Court was not prepared to go behind the findings of the District Court in relation to the reliability of the evidence of Mr Warren's cellmate. The appeal against sentence succeeded, as the High Court found the sentence imposed by the District Court manifestly excessive. The High Court substituted a sentence of three years, six months imprisonment, with a minimum period of imprisonment of two years.

Orders