Waterman v Police

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0418 [2016] NZHC 247

BETWEEN

JUSTIN DAVID WATERMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 February 2016
Appearances:	C D Wheatley for Appellant L E Nunweek for Respondent
Judgment:	23 February 2016

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 23 February 2016 at pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Public Defence Service, Manukau

Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

WATERMAN v POLICE [2016] NZHC 247 [23 February 2016]

[1]      The Appellant appeals against sentence imposed by Judge G T Winter in the

District Court at Manukau on 1 December 2015.1

[2]      The Appellant was for sentence on the following charges, to which he had pleaded guilty:

(a)       four breaches  of  a protection  order.2     These breaches  occurred  in

February, April, July and September 2015; (b) breach of release conditions;3

(c)       one charge of possessing utensils;4

(d)      one of possessing methamphetamine;5 and

(e)       one of possessing a knife in a public place.6

[3]      The Judge sentenced the Appellant to 30 months’ imprisonment, arrived at as follows:

(a)       starting  point  of  two  years’  imprisonment  on  the  breach  of  the

protection order in September 2015;

(b)three months for the breach in July, two for the breach in April and one for the breach in February 2015;

(c)       two months for the breach of release conditions;

(d)two     months     for    the     offending    relating     to     the    utensils, methamphetamine and knife;

1      Police v Waterman [2015] NZDC 23807. See also Criminal Procedure Act 2011, s 244.

2      Domestic Violence Act 1995, ss 19 and 49; maximum penalty three years’ imprisonment.

3      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or a fine of $2,000.

4      Misuse of Drugs Act 1975, s 13(1)(a); maximum penalty one year imprisonment or a fine of

$500.

5      Misuse of Drugs Act, s 7(1)(a); maximum penalty six months’ imprisonment or a fine of $1,000.

6      Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a fine of

$2,000.

(e)       a 15 per cent deduction for the Appellant’s guilty pleas.

[4]      It  is  common  ground  that  the  Judge  made  some  mathematical  errors  in arriving at the end sentence of 30 months and that, at the very least, these errors must be corrected.  However, there is also no real dispute that the sentence was manifestly excessive regardless of those errors, and that it is necessary to “re-sentence” the Appellant accordingly.

[5]      As to that re-sentencing, counsel for the Appellant submits that the Judge ought to have adopted a starting point of 16 months’ imprisonment for all breaches of the protection order, and that the Appellant was entitled to a discount of 25 per cent for his guilty pleas.  Counsel does not object to the uplifts the Judge imposed for the other offending nor to an uplift of, say, four months for prior offending.

[6]      The only aspect of that submission that Crown counsel…