Young v Police - [2022] NZHC 1009

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-000040

[2022] NZHC 1009

BETWEEN
MARCUS CONRAD YOUNG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
4 May 2022

(Heard at Hamilton)

Appearances:

D M Johnston for the Appellant A A Maino for the Respondent

Judgment:

12 May 2022

JUDGMENT OF HINTON J

This judgment was delivered by me on Thursday 12 May 2022 at 9.30 am

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
D M Johnston, Barrister, Taupo
Gordon Pilditch, Crown Solicitor, Rotorua

YOUNG v NEW ZEALAND POLICE [2022] NZHC 1009 [12 May 2022]

[1] Mr Young appeals his sentence of 20 months’ imprisonment imposed on 15 February 2022 by Judge Hollister-Jones for the offences of breaching a protection order,1 demands to steal2 and wilful damage.3
[2] Mr Young was granted leave to apply for home detention should a place at a residential rehabilitation facility become available. He applied to the Salvation Army but was advised he was not eligible while under electronic monitoring.

[3]Mr Young says that the sentence was manifestly excessive because:

(a)the starting points for both the lead charge of demands to steal and breach of protection order were too high;

(b)the Judge failed to take the totality principle into consideration;

(c)the Judge awarded a full discount for guilty plea but applied a discount of only 23 per cent; and

(d)there should have been further discounts for personal mitigating factors such as remorse, ill-health, alcoholism and prospects for rehabilitation.

Summary of facts

Fern Café incident

[4] Mr Young went to the Fern Café in Taupō on 1 September 2021 operating under the belief that the owner had victimised a whanau member of his. When he entered the café he picked up a steak knife from the cutlery shelf and said, “Wow, this is a sharp knife”.

[5] The victim asked a witness, Mr Thompson, to get the knife back from Mr Young, which Mr Thompson did.

1      Family Violence Act 2018, ss 9, 90(a) and 112(1)(a); maximum penalty 3 years’ imprisonment.
2      Crimes Act 1961, s 239(2); maximum penalty 7 years’ imprisonment.
3      Summary Offences Act 1981, s 11(1)(a); maximum penalty 3 months’ imprisonment or a
$2,000.00 fine.

[6] Mr Young then said to the victim words to the effect: “We are not here to harm you. If we want, we can take money from the tills. But we don’t need money. We need the owner”.

[7] Mr Young told the victim he wanted money from the till which was in front of him. Mr Young’s reasoning was that the owner of Fern Café would see via CCTV that he had taken money from the till and would come to the store to get the money back. Mr Young said he would sit on the couch inside the café and once the owner arrived he would give the money back.

[8] Mr Young picked up two more steak knives from the shelf, walked towards the victim and said: “Since there are no…

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 Young v Police

Details

AGLC: Young v Police [2022] NZHC 1009
Case: [2022] NZHC 1009
Decision Date: 12 May 2022

CaseChat Overview and Summary

The case of Young v Police involves Marcus Conrad Young, who appeals his sentence of 20 months' imprisonment imposed by Judge Hollister-Jones for breaches of a protection order, demands to steal, and wilful damage. Mr Young argues that the sentence was excessively high due to several factors, including the starting points for the charges, the totality principle, and the discounts applied. The court was tasked with determining whether the sentence was indeed excessive and, if so, what the appropriate sentence should be.

The court considered the starting points for each offence and found that while the starting point for the lead charge was appropriate, the starting point for the breach of protection order was too high. The court adjusted the starting point for this charge and considered the totality principle, which led to no discount for totality but a reduction in the uplift for dishonesty offending. The court also acknowledged that additional discounts should have been applied for personal mitigating factors such as remorse, ill-health, alcoholism, and prospects for rehabilitation.

After weighing the various factors, the court found that the sentence of 20 months' imprisonment was manifestly excessive. The appeal was allowed, and the sentence was reduced to 14 months' imprisonment, with 11 months on the demanding with menaces charge and three months cumulative on the breach of protection order. The concurrent sentence on the charge of intentional damage and the orders allowing cancellation of intensive supervision and leave to apply for home detention were maintained.

The final orders of the court were to quash the original sentence of 20 months' imprisonment and replace it with a sentence of 14 months' imprisonment, with the other conditions of the sentence remaining the same. The court praised the balanced and excellent submissions from both counsel, which greatly assisted in reaching its decision.

Orders