Anderson v Police - [2021] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-246

[2021] NZHC 1994

BETWEEN
SCOTT CLIFFORD ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 August 2021

Counsel:

D M M Dickinson for Appellant E C Rutherford for Respondent

Judgment:

4 August 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 August 2021 at 11.30 am

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

ANDERSON v POLICE [2021] NZHC 1994 [4 August 2021]

Introduction

[1] Mr Anderson appeals the sentence of two years and five months’ imprisonment imposed on him by Judge EP Paul on 14 May 2021.1

[2] Mr Dickinson, for Mr Anderson, told me that the aim of the appeal is to have the sentence reduced to 24 months’ imprisonment, a sentence which could then be commuted to home detention to be served at Odyssey House. Odyssey House has agreed to admit Mr Anderson into its Te Wairua programme commencing on 9 September 2021.

[3] Mr Dickinson’s submission is that the sentence imposed by the Judge is manifestly excessive in that an additional 10 per cent discount from the starting point should have been awarded to better reflect Mr Anderson’s personal situation.

[4] The insuperable difficulty for Mr Anderson is that I can reduce his sentence only if I find an error by Judge Paul such that a different sentence should be imposed. But, in my view, Judge Paul’s sentence was merciful and clearly aimed at assisting Mr Anderson with his newfound desire to rehabilitate himself. There is no error. Accordingly, I will dismiss the appeal.

Reasons

[5] Mr Anderson was sentenced by Judge Paul on 28 charges2 to which he had pleaded guilty. The lead charges were six charges of burglaries of both private homes and commercial premises.

[6] I will not describe the offending in detail. There is no need. The burglaries occurred over a three month period from August to October 2020. Mr Armstrong, during daylight, simply walked into commercial or residential premises and stole things. On two occasions he was confronted by occupants, and immediately left.

1 Police v Anderson [2021] NZDC 9365.
2 This is the number given by Judge Paul. But, the Crown counted 29 charges and, looking at the sentences handed down, I identified 27 charges. The discrepancies are immaterial to my decision.

[7] Following some of the burglaries, Mr Anderson used stolen credit cards to make purchases. This resulted in 16 charges of dishonestly using a document.

[8] The other charges identified by Judge Paul were two charges of receiving stolen wallets, one charge of being unlawfully in a yard, one charge of theft of a wallet and one charge of unlawfully getting into a motor vehicle. This last charge resulted in a loss to the owner of the vehicle of $1,500.

[9] Judge Paul adopted a starting point for the six burglaries of three years and six months’ imprisonment. This is not challenged on appeal.

[10]…

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: [2021] NZHC 1994
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Scott Clifford Anderson appealed against the sentence of two years and five months’ imprisonment imposed by Judge EP Paul on 14 May 2021. The appeal was heard on 2 August 2021, with D M M Dickinson representing the appellant and E C Rutherford representing the respondent. The judgment was delivered by Brewer J on 4 August 2021. The primary issue in this appeal was whether the sentence imposed by the Judge was manifestly excessive, such that a reduction to 24 months’ imprisonment, allowing for home detention at Odyssey House, was warranted. The appellant argued that an additional 10 per cent discount from the starting point should have been awarded to better reflect his personal situation.

Brewer J examined the reasoning behind Judge Paul's sentencing, noting that the starting point for the six burglaries was three years and six months’ imprisonment, which was deemed appropriate. The Judge also added three months for other charges, which the appellate court considered generous, and imposed a nominal uplift of three months for the appellant's criminal history. The Judge discounted the starting point by 25 per cent for the pleas of guilty and a further 5 per cent for restorative justice efforts, and 10 per cent based on a report under s 27 of the Sentencing Act 2002. Brewer J found that the overall starting point of four years’ imprisonment was very light and that the final sentence of two years and five months was at the lower end of the range available. The court concluded that there was no basis to increase the discount to the level advocated by the appellant. Therefore, the appeal was dismissed.

Orders