White v Police - [2016] NZHC 1786

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000135 [2016] NZHC 1786

BETWEEN
JAMES CAMERON WHITE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 June 2016

Appearances:

DJ Ratima for Appellant
ET Fletcher for Respondent

Judgment:

3 August 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 3 August 2016 at 12 midday
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

White v New Zealand Police [2016] NZHC 1786 [3 August 2016]

Summary

[1] James Cameron White was sentenced by Judge Mahon at the Manukau

District Court on 24 March 2016 for:1

(a) two charges of male assaults female, for offences committed on 20

August 2015 and 7 January 2016 respectively;

(b) one charge of intimidating behaviour, committed on 20 August 2016; (c) one charge of breach of a protection order (physical abuse of a
protected person), committed on 8 January 2016;

(d) one charge of resisting a constable, committed on 8 January 2016; and

(e) two charges of breach of a supervision order.

[2] He was sentenced to concurrent terms of imprisonment leading to an

effective total end sentence of 15 months’ imprisonment.

[3] Mr White now appeals his sentence on the basis that the Judge erred in not taking into account a period of pre-sentence detention in 2015. He says the sentence should have been structured in a way which allowed his pre-sentence detention to be credited as time served under s 90 of the Parole Act 2012.

Factual background

[4] On 20 August 2015, Mr White and his partner (the complainant) were drinking at home and had an argument. He placed both hands on her shoulders to stop her getting up; there was a struggle of some kind. When the complainant went to a neighbouring house to get away from him, Mr White followed her yelling abuse such as, “Tell the bitch to come outside or I will hurt her.” As a result of this
incident, Mr White was charged with assault with intent to injure and threatening to

1 Police v White [2016] NZDC 5080.

kill. On 24 August 2014, the Manukau Family Court imposed a final protection order on Mr White.

[5] Mr White was refused bail at his first appearance on 20 August 2015 and he remained in custody until 23 November 2015 when he was due to be tried by a judge sitting alone. The trial was adjourned, however, because the complainant did not appear at court. Mr White was granted bail pending a judge-alone trial scheduled for
22 February 2016.

[6] While on bail, Mr White was charged with two breaches of a post-release supervision order, by failing to report to his probation officer and breaching a condition that he should not associate with his partner.

[7] On 7 January 2015, while still on bail, Mr White was drinking at a park with the complainant and a friend. He became jealous when the complainant talked about a friendship with another male. Mr White picked up her handbag…

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 White v Police

Details

AGLC: White v Police [2016] NZHC 1786
Case: [2016] NZHC 1786
Decision Date: 3 August 2016

CaseChat Overview and Summary

The appellant, James Cameron White, was convicted and sentenced by the Manukau District Court on multiple charges including male assaults on a female, breach of a protection order, and resisting arrest. White appealed his sentence to the High Court, arguing that the District Court erred by not considering a period of pre-sentence detention in 2015 when structuring his sentence. White contended that the sentence should have been structured in a way that allows his pre-sentence detention to be credited as time served under the Parole Act 2012.

The High Court examined whether there was an error in the sentence imposed and whether a different sentence should be imposed. The Court noted that despite the appellant's three months in custody prior to being released on bail, this was not considered by the District Court in determining the length of the sentence. However, the Court held that the District Court was precluded from considering pre-sentence detention under the Sentencing Act 2002. Additionally, the Court found that the structure of the sentence was not manifestly excessive, and the arithmetical error in the District Court’s calculation resulted in a sentence shorter than intended.

The Court concluded that the appeal could not be allowed as the District Court's sentence was not wrong and it was neither necessary nor proper for the High Court to impose a different sentence. The Court dismissed the appeal, holding that the statutory regime and the binding precedents of Booth v R and Te Aho v R prevented interference in the structuring of sentences to recognise pre-sentence detention.

Orders