Withey v Police - [2016] NZHC 3061

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-38 [2016] NZHC 3061

BETWEEN
AARON WITHEY

Appellant

AND

NEW ZEALAND POLICE Respondent

HearingviaAVL: 13 December 2016

Counsel:

N M Graham for Appellant
F G Biggs for Rdspondent

Judgment:

14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Withey was sentenced on 20 October 2016 to 12 months’ imprisonment for attempting to pervert the course of justice and assault.1 He appeals against sentence on the basis that home detention should have been substituted.

Facts

[2] The assault occurred on 29 March 2016 when the complainant – Mr Withey’s former partner – arrived at Mr Withey’s home with two men to recover her property. A fight ensued, during which Mr Withey punched one of the men in the eye, resulting in lacerations and swelling to his cheekbone below his eye and on the side of his head.

[3] Before trial, Mr Withey emailed the complainant and threatened her that if

she turned up to Court and “lied” about what happened, he would provide CYFS

with information that would result in her son being taken away from her.

1 R v Withey [2016] NZDC 22759.

AARON WITHEY v NEW ZEALAND POLICE [2016] NZHC 3061 [14 December 2016]

District Court decision

[4] Judge Adeane adopted a starting point of 18 months’ imprisonment on the attempting to pervert the course of justice charge. He uplifted by six months for the other offending. He then gave a 25 per cent reduction for the guilty plea, and a further 25 per cent for the “emotional overlay to all of this”. This resulted in a sentence of 12 months on the attempting to pervert the course of justice charge, and concurrently four months for the assault. He took the view that an underlying principle in this type of offending was that a full-time custodial sentence should be imposed in all but the most exceptional cases, and this, he said, was not an exceptional case.

Appellant’s submissions

[5] The appeal is advanced on the sole basis that the Judge made an error in not considering home detention. Counsel submits that having arrived at an end sentence of 12 months, the Judge was required to consider whether home detention should be imposed, which he did not. Prison is not an inevitable sentence for attempting to pervert the course of justice. Mr Withey had no history for this type of offending, and his actions were impulsive rather than premeditated and vindictive. The PAC report was positive and recommended community work and supervision, because electronic monitoring would be difficult given his occupation. An electronic sentence was listed as an alternative. Mr Withey had never served a sentence of imprisonment and was in full time employment. He has a stable address where he can serve an electronic sentence.

Respondent’s submissions

[6] Counsel submits that the offending was moderately serious of its kind, when looked at in context. The email was sent following an act of violence that the complainant witnessed, and in…

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 Withey v Police

Details

AGLC: Withey v Police [2016] NZHC 3061
Case: [2016] NZHC 3061
Decision Date: 14 December 2016

CaseChat Overview and Summary

Aaron Withey appeals against his sentence, arguing that home detention should have been substituted for his 12-month imprisonment sentence. The case involves an assault and an attempt to pervert the course of justice, where Withey threatened his former partner, the complainant, if she testified against him. The District Court judge upheld a custodial sentence, rejecting the defence argument for home detention. The High Court was tasked with determining whether the District Court judge erred in not considering home detention as an alternative sentence.

The central legal issue was whether the District Court judge erred in not considering home detention as a viable alternative to imprisonment for the appellant. The appellant's counsel argued that the judge was obligated to consider home detention upon arriving at a sentence of 12 months. They highlighted the appellant's lack of a criminal history, his impulsive actions, and the positive Probation and Corrections (PAC) report, which recommended community work and supervision. The respondent argued that the offending was moderately serious, and the judge appropriately balanced the principles and purposes of sentencing, considering the appellant's personal circumstances and the usual custodial sentences for such offences.

The High Court found that the District Court judge had implicitly considered and rejected home detention, aligning with the principle that attempts to pervert the course of justice are typically met with moderately serious sentences of imprisonment. The Court noted that home detention, while serious, is exceptional for such offences. Although there are exceptions where home detention has been applied, the Court concluded that this case did not present exceptional circumstances warranting a non-custodial sentence. The Court of Appeal's guidance in M (CA469/2013) v R supported the District Court's decision, emphasizing that any attempt to disturb the administration of justice is generally met with imprisonment. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the original sentence of 12 months’ imprisonment for attempting to pervert the course of justice and four months concurrently for assault, as handed down by the District Court, was upheld.

Orders