Webster v Police - [2017] NZHC 2685

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-300 [2017] NZHC 2685

BETWEEN
JERICHO WEBSTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 October 2017

Counsel:

M B Mortimer for Appellant
J C Bull for Respondent

Judgment:

3 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 November 2017 at 9:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Maria Mortimer (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

WEBSTER v POLICE [2017] NZHC 2685 [3 November 2017]

Introduction

[1] The appellant, Mr Webster, appeals his sentence of three years’ imprisonment imposed by Judge Roberts in the District Court.1

Background

[2] Mr Webster pleaded guilty to 25 charges for offences committed between

24 November 2015 and 15 December 2016.2 The cost of the offending was said to be

$10,781.87.3 I will not address the facts forming the basis for these charges in detail. It suffices to say that most of them related to motor vehicles, but there were also charges of theft and demanding with menaces.

[3] Judge Roberts sentenced Mr Webster to a total of three years’ imprisonment on

25 August 2017.4 I attach a table of the charges and sentences as an appendix to this

Judgment.

[4] Mr Webster appeals his sentence on the ground it is manifestly excessive. He submits the Judge adopted too high a starting point for the lead offending, failed to consider the totality principle and gave insufficient discounts for his personal mitigating circumstances, particularly his youth.

Approach on appeal

[5] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction;
and

(b) a different sentence should be imposed.

1      R v Webster DC Auckland CRI-2016-004-6931, 25 August 2017 at [28].
2      In summary, there were three charges of unlawfully taking a motor vehicle, nine charges of unlawfully getting into a motor vehicle, one charge of unlawfully interfering with a motor vehicle, one charge of failing to answer District Court bail, one charge of receiving property, one charge
of theft of property in excess of $1,000, one charge of demanding with menaces, one charge of
reckless driving, one charge of failing to stop when requested to stop, one charge of failing to stop when followed by red/blue flashing lights, two charges of dangerous driving, one charge of failing to stop or ascertain injury, one charge of resisting police, and one charge of wilful damage.
3      R v Webster, above n 1, at [20].
4      R v Webster, above n 1, at [28].

[6] In any other case, the Court must dismiss the appeal.5 A sentence may be set aside where it is manifestly excessive.6 The Court will then go on to form its own view of the appropriate sentence.7

[7] Judge Roberts took an unorthodox approach to…

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 Webster v Police

Details

AGLC: Webster v Police [2017] NZHC 2685
Case: [2017] NZHC 2685
Decision Date: 3 November 2017

CaseChat Overview and Summary

The appellant, Jericho Webster, appeals against his sentence of three years’ imprisonment imposed by Judge Roberts in the District Court. Mr Webster pleaded guilty to 25 charges for offences committed between 24 November 2015 and 15 December 2016. The cost of the offending was said to be $10,781.87. The majority of the charges related to motor vehicles, but there were also charges of theft and demanding with menaces. Mr Webster submits that his sentence was manifestly excessive. The Crown submits that the sentence was within the appropriate range.

The court first assessed the starting point for the lead offending. The court concluded that the Crown's reliance on R v Mako was not erroneous and that the starting point was within the appropriate range for the offending. The court then assessed the starting point for the remaining charges. The court concluded that the Judge's starting point for the remaining charges was too high and that the appropriate starting point was two years and two months’ imprisonment. The court then considered whether the starting point should be uplifted to account for the fact that Mr Webster offended while on bail. The court concluded that it should be uplifted by six months’ imprisonment. The court then assessed whether the Judge had properly considered the totality of Mr Webster’s offending. The court concluded that the Judge had considered totality and that the starting point should stand. The court then considered whether the Judge had properly discounted the sentence for Mr Webster’s personal circumstances. The court concluded that the Judge’s discount for Mr Webster’s youth was insufficient. The court concluded that a 15 per cent discount was appropriate. The court also considered whether the Judge’s discount for Mr Webster’s guilty plea was appropriate. The court concluded that it was.

The court concluded that the sentence was not manifestly excessive. The appeal was dismissed.

Orders