The Supreme Court has elaborated on various factors, such as cultural deprivation, that can be taken into account at sentencing, (Berkland (2022)). Individualised justice requires a careful evaluation of the circumstances of the offending and of the offender. Punishment is premised on offender agency. An offender’s background may affect the extent of that agency. The court considered Australian and Canadian approaches. There are practical and conceptual challenges with connecting a community’s traumatic but distant past with individual offending. The court preferred the standard of ‘causative contribution’ rather than requiring a ‘proximate’ cause in each case. Although it is a lower standard, it must be based on explanatory facts not ethnic assumptions. The court provides direction in the drafting of cultural reports under section 27 of the Sentencing Act 2002.
New office details
Tony Beach has joined Chancery Chambers which is located at Level 4, 2 Chancery Street, Auckland 1010.
Client discharged without conviction - burglary and common assault
A client faced charges of burglary and common assault. After Tony Beach discussed the charges with police, the burglary charge was withdrawn and a plea of guilty entered to the common assault charge. The judge indicated an application for discharge without conviction would be granted if there was a satisfactory restorative justice conference between the defendant and the complainant. Unfortunately, the complainant left to travel overseas so there was no restorative justice conference. However, the complainant provided an extensive letter to the victim adviser expressing the hope that there would be no conviction for the defendant. At the sentencing the judge accepted that the consequences of a conviction for the defendant would be out of proportion to the gravity of the offending and discharged the defendant without conviction on the remaining common assault charge.
Charges of theft, assault and unlawfully interfering with a motor vehicle dismissed
Tony Beach’s client was charged with theft from a person, assault and unlawfully interfering with a motor vehicle. At the judge-alone trial, the judge dismissed the charge of unlawfully interfering with a motor vehicle as the police had failed to summons their civilian witness in sufficient time for the hearing; the police conceded that they had insufficient evidence to proceed with the theft charge, which was then dismissed; Tony Beach then applied for the assault charge to be dismissed under s147 of the Criminal Procedure Act as there was insufficient evidence of identity of the defendant on which a judge could find beyond reasonable doubt that he had committed the assault. The judge agreed and dismissed that charge as well.
Judge dismisses 2 counts of using a document to obtain a pecuniary advantage
Tony Beach’s client, a mother of a disabled son, was charged by the Ministry of Social Development (MSD) with using a document (benefit claim forms) on two occasions to obtain a pecuniary advantage (a benefit for looking after her disabled son). The offence attracts up to 7 years imprisonment. The MSD alleged that, because another party was being paid a sum to care for the disabled man for a number of hours per week, the mother could not have been providing “full time care and attention” of her son as required by the conditions of the benefit. However, “full time care and attention” doesn’t require 24 hour care – only that the disabled son had 24 hour access to his mother’s care, which the defence asserted he did. Tony Beach obtained documentation from ACC through a non-party disclosure application which revealed the extent of the care and attention the mother provided for her disabled son. After a two day judge alone trial, the judge found that the mother acted honestly and “has done nothing more than endeavour to provide the best care for her son. It is clear that that care has been and continues to be an enormous burden”. The judge dismissed each of the charges.
Tony Beach interviewed by Newstalk ZB
UPDATED 5.40pm: MP Chester Borrows has been charged over injuring two women with a car during a Trans Pacific Partnership (TPP) protest.
http://www.newstalkzb.co.nz/news/politics/mp-chester-borrows-charged-over-tpp-protest-driving/
LISTEN ABOVE: Expert in traffic law, barrister Tony Beach talks to Larry Williams
The Whanganui National MP and Deputy Speaker of the House of Representatives told NZME he would defend the charge of careless driving causing injury for the March incident in Whanganui.
MORE: Police investigate whether MP ran over protester’s foot
He would not comment further.
A charge sheet at the Whanganui District Court today showed a 59-year-old man named Kerry James Borrows – his birth name – was charged with operating a vehicle on Liverpool St carelessly, “and thereby caused injury to Tracey Treadwell and Denise Lockett.”
Detective Senior Sergeant Neil Forlong would not confirm names, but said a 59-year-old man has been charged in relation to an incident on Liverpool St on March 22.
Crown prosecutors will have a lot to prove to show Mr Borrows is guilty of careless driving.
Auckland barrister Tony Beach told Larry Williams there are a number of elements to the careless driving charge which prosecutors will have to prove.
“Was he driving. Was he driving carelessly. Possibly he may not have even been on a road.”
The role of Parliament’s Deputy Speaker is now under question after it emerged he’s been charged by police, and it’s not the first time a Deputy Speaker has been in hot water.
In 2000 then Deputy Speaker Ian Revell stepped down from the post, over a $40 parking ticket and allegations he’d threatened police over it.
Whether Mr Borrows will also step down remains unknown.
He’s offering no comment on the matter and the Speaker’s Office is yet to clarify its position.
It is not yet known when Borrows will appear in court.
Blackmail charge amended
A defendant was referred to Tony Beach by a solicitor. The client was charged with blackmail, a serious charge attracting up to 14 years imprisonment under the Crimes Act 1961. After considering the evidence and taking full instructions from his client, Tony Beach successfully negotiated an agreement with the Crown to amend the charge to an offence under the Telecommunications Act 2001, attracting up to 3 months imprisonment. After hearing submissions from Tony Beach, the judge ordered the client to come up for sentence if called upon in 12 months – a ‘good behaviour bond’ – together with a modest emotional harm payment to the victim.
Appeal to the High Court successful
Tony Beach’s client pleaded guilty to a raft of charges and was sentenced to two years imprisonment. However, the client instructed that the decision be appealed to the High Court. The appeal was based on the grounds that the judge should have imposed home detention. After considering written submissions and hearing extensive argument from Tony Beach the High Court agreed that a sentence of home detention was appropriate. The sentence of imprisonment was vacated and a sentence of ten months home detention was imposed.
Assault with intent to injure charge dismissed
Tony Beach’s client was charged with assault with intent to injure under section 193 of the Crimes Act 1961. The complainant had given a long statement to the Police detailing an assault. The client had given the Police a statement denying the allegations. A not guilty plea was entered. As the matter progressed, it became apparent that the complainant had provided inconsistent statements to the Police which Tony Beach obtained. On the day of the judge-alone trial, the Police agreed to withdraw the charge and the Judge dismissed the charge.
Discharge without conviction on drugs charges
A client had been charged with drugs offences under the Misuse of Drugs Act 1975 and the Medicines Act 1981. The client was also later charged with failing to answer District Court bail under the Bail Act 2000. Tony Beach, through extensive written submissions and evidence by way of affidavits, sought a discharge without conviction on all charges on the grounds that the client – a young mother – was hoping to return to work shortly and convictions for drugs offences would reduce her chances of obtaining employment: that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.
The Judge carefully considered the offending and the evidence before him of what those consequences might be of convictions for drugs offending. The Judge held that there was a “medium severity of consequences” which would be out of proportion to the seriousness of the offending. The Judge accepted the grounds had been made out and discharged the client without conviction on all charges.