Brown v Police [2013] NZHC 65 (5 February 2013)

Last Updated: 21 March 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-64

CRI-2012-425-65 [2013] NZHC 65

JAMIE BRYCE BROWN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 5 February 2013

Appearances: J Fraser for the Appellant

E Higbee for the Respondent

Judgment: 5 February 2013

_{ORAL JUDGMENT OF FOGARTY J}

[1] This is an appeal from a decision of the District Court Judge Moran, who sentenced the appellant on two burglary charges and on a male assaults female charge.

[2] The grievance which led to this appeal is being sentenced on assault on a female.

[3] The burglaries had taken place on 23 August 2012 and 19 November 2012. The male assaults female was on 28 October 2012. There was a domestic incident with his partner, where they were in an argument. He punched her in the arm. Later,

_{he threw a baby’s bottle at her, hitting her on the back of the head. He cornered her}

BROWN V NEW ZEALAND POLICE HC INV CRI-2012-425-64 [5 February 2013]

against a sink and took her cell phone from her and punched her in the head. He pleaded guilty to this assault. He was ordered to come up to sentence if called upon within the next 12 months.

[4] As he came to the District Court for sentence on the burglary, the Judge elected to call upon him to come up for sentence on the male assaults female. The Judge had a broad discretion to do this in s 111(3) of the Sentencing Act. There are no preconditions which for example require a matter which gives rise to the call up to be related in kind or circumstance to the offence being called up for sentence. Once the Court has called up the offender for sentence, then under subs (5) the Court must enquire into the circumstances of the original offence and the conduct of the offender since the order was made.

[5] Against the statutory background, Mr Fraser was not able to challenge the exercise of Judge Moran’s decision to call the male assaults female offence up for sentence. All discretions have to be exercised for their proper purpose. I am satisfied that the decision of Judge Moran in this case falls within the bounds of the purpose of the section; largely because Parliament has deliberately made the discretion a broad one and not fettered it by similar criminal conduct for example. For these reasons I do not think there is any error of principle in the judgment under appeal. Therefore, there is no basis for this Court intervening. Accordingly, the appeal is dismissed.

Solicitors:

John K Fraser, PO Box 935, Invercargill

Preston Russell Law, PO Box 827, Invercargill – [e-mail]