Watt v Police - [2014] NZHC 3055

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-37 [2014] NZHC 3055

BETWEEN
AYDEN WATT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 November 2014

Appearances:

A Dawson for the Appellant
C E R Power for the Respondent

Judgment:

2 December 2014

JUDGMENT OF MALLON J

Introduction

[1] Mr Watt pleaded guilty to and was convicted on charges of possession of cannabis for supply,1 assaulting a police officer with intent to avoid arrest,2 driving while disqualified,3 driving dangerously,4 and failing to stop.5 He was also for sentence for a breach of community work6 and in relation to a remission of $4,350 of fines. He was sentenced to two years and three months imprisonment in the District Court at Dunedin.7 He appeals against his sentence on the ground that it is
manifestly excessive.

1      Misuse of Drugs Act 1975, s 6 (maximum penalty of eight years imprisonment).
2      Crimes Act 1961, s 192(1)(c) (maximum penalty of three years imprisonment).
3      Land Transport Act 1998, s 32(1)(a) and 32(3) (maximum penalty of three months imprisonment or a $4,500 fine; minimum six months disqualification).
4      Section 35(1)(b) (maximum penalty of three months imprisonment or a $4,500 fine; minimum
six months disqualification).
5      Section 52(1)(c), (3) and (5) (maximum penalty of $10,000 fine; three months disqualification).
6      Sentencing Act 2002, s 71(1)(a) (maximum penalty of three months imprisonment or a $1,000 fine). He had served a total of 207.5 hours and 72.5 hours of community work remained.
7      Police v Watt DC Dunedin CRI-2014-021-1906, 26 September 2014.

WATT v NEW ZEALAND POLICE [2014] NZHC 3055 [2 December 2014]

The offending

[2] On 9 July 2014 Mr Watt was riding a motorcycle on Great King Street in Dunedin. A police car activated its red and blue flashing lights and siren. Mr Watt accelerated away. His speed at times exceeded 100 km/h. He drove up the wrong way of a one-way street and went through a stop sign without slowing down. This was all within a 50 km/h area in medium traffic. Mr Watt lost control of his motorcycle and crashed.

[3] A police officer chased Mr Watt on foot. As he reached him, Mr Watt took his helmet off and began swinging it at the officer’s head. He struck the officer several times on his arm and the right side of his head. He then grabbed the officer and tripped him up, causing him to stumble to the ground. He again swung his helmet threateningly as the officer approached him. The officer suffered grazes, bruises and tenderness to his arm and face.

[4] Mr Watt was apprehended. A search was conducted of his backpack. Police found 69 small bags of cannabis, each weighing approximately a gram ($20 bags), as well as eight slightly larger bags containing three or four grams ($50 bags).

The offender

[5] Mr Watt was 19 at the time of the offending. He was unemployed and had substance abuse issues. He wrote a letter to the Court where he apologised…

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.

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Details

Case: [2014] NZHC 3055
Decision Date: 2 December 2014

CaseChat Overview and Summary

In Watt v Police, the appellant, Ayden Watt, appealed against his sentence of two years and three months imprisonment, imposed by the District Court in Dunedin, for various charges including possession of cannabis for supply, assaulting a police officer, driving while disqualified, driving dangerously, and failing to stop. Watt argued that his sentence was manifestly excessive. The High Court of New Zealand, Dunedin Registry, was required to determine whether the sentence was appropriate and whether there were any errors in the District Court's sentencing process.

The court first examined the starting point for the cannabis offence, agreeing with Watt's counsel that the three-year starting point was too high and should have been two years. The court then considered whether the District Court judge had double-counted the driving offence, but found that the judge had not, as the references to connected offending likely pertained to the aggravated assault or the failing to stop offence. The court also found that the uplift for the breach of community work was excessive, and that an uplift of one month was more appropriate. Taking into account the appropriate starting point, the court determined that an overall starting point of two years and eleven months imprisonment was appropriate. After considering youth and guilty pleas, the court found that the end sentence should be two years imprisonment.

The court concluded that the appeal should be adjourned for 10 days to allow Watt to present a suitable home detention address. If a suitable address was found, the court would consider an appropriate term of home detention, taking into account the time Watt had already served in custody. If no suitable address was found, Watt's sentence would be quashed and replaced with a sentence of two years imprisonment.

Orders