Anderson v Police - [2013] NZHC 2632

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000007 [2013] NZHC 2632

BETWEEN
LEVI RAWIRI ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 October 2013

Appearances:

GW O'Brien for Appellant

RB Annandale for Respondent

Judgment:

10 October 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 October 2013 at 3:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ANDERSON v NZ POLICE [2013] NZHC 2632 [10 October 2013]

[1] Levi Rawiri Anderson appeals against a sentence of three years four months’ imprisonment imposed upon him in the District Court at Hamilton by Judge Burnett on six charges of burglary, six charges of receiving, two charges of theft, one charge of being found in an enclosed yard, a charge of contravening a protection order, an associated charge of causing intentional damage and three charges of breaching prison release conditions. The offending occurred over a five to six month period between January 2012 and June 2012. The appellant pleaded guilty to all charges.

[2] Mr O’Brien, who now appears for the appellant but did not represent him in the District Court, informed me that he had been instructed by the appellant that an appeal against conviction had been filed. A comprehensive search of the Court’s database throughout New Zealand does not reveal any such appeal having been lodged and it appears Mr Anderson is mistaken about that. As I understood it from Mr O’Brien, the suggestion that an appeal against conviction should be made was motivated by Mr Anderson’s concern that he had entered into something of a plea bargain with the Police prior to entering his pleas and that he had anticipated that the sentence he would receive would be less than that actually imposed.

[3] Mr O’Brien has investigated the possibility of a conviction appeal and I have also given consideration to the matter. It is clear, however, that the exceptional circumstances which would be required to allow an appeal against convictions based upon guilty pleas simply do not exist here. The appropriate course for an appellant in these circumstances is to argue that the effective end sentence imposed was clearly excessive.

[4] That is what has in fact happened: the grounds of appeal in the notice filed by the appellant’s then counsel were that the sentence was manifestly excessive and wrong in fact and law, and that the Judge failed to take into account all mitigating factors.

[5] Mr O’Brien has focused his submissions on the starting point adopted in the District Court and on an argument that the Judge failed to give the appellant appropriate credit for genuine remorse and his motivation to change his behaviour.

Facts

Burglaries

[6] On 5-6 February 2012, the appellant forced open a front window at a residential address and stole $3,000 worth of property. On 24 February 2012, the appellant entered a residential address through an insecure door while the victim was at home and asleep, and took a laptop and a portable hard…

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.

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Details

Case: [2013] NZHC 2632
Decision Date: 10 October 2013

CaseChat Overview and Summary

In Anderson v Police, the appellant, Levi Rawiri Anderson, appealed against his sentence of three years and four months’ imprisonment imposed by the District Court on various charges including burglary, receiving, theft, and breaches of conditions. The appellant argued that the sentence was manifestly excessive and that the District Court Judge had failed to take into account all mitigating factors, particularly his genuine remorse and motivation to change his behaviour. The appeal was heard by Justice Toogood, who reviewed the evidence and arguments presented by both parties. The court determined that the sentence was not manifestly excessive, and that the District Court Judge had appropriately considered the appellant's personal circumstances, including his criminal history and guilty pleas. The court found that the appellant's expressions of remorse, while acknowledged, were not sufficient to warrant a separate discount beyond that already applied for his guilty pleas. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders