Anderson v Police - [2017] NZHC 1566

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-000017 [2017] NZHC 1566

BETWEEN
KIERAN MARK ANDERSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 July 2017 (at Wellington)

Counsel:

W Hawkins for Appellant (via AVL) C R Stuart for Respondent

Judgment:

7 July 2017

JUDGMENT OF COLLINS J

Introduction

[1] Mr Anderson appeals his sentence of 16 months’ imprisonment imposed by Judge Adeane in the Hastings District Court on 4 May 2017.1 The 16-month sentence of imprisonment was a culmination of sentences imposed in relation to one charge of burglary,2 one charge of unlawfully taking a motor vehicle,3 one charge of driving while disqualified,4 one charge of possession of a knife,5 one charge of failing to answer police bail6 and two charges of failing to answer District Court bail.7 Judge Adeane treated the burglary offence as the lead offence and reached an end sentence of 16 months’ imprisonment in relation to that matter and the unlawful
taking of a motor vehicle charge. Mr Anderson was convicted and discharged for

1      Police v Anderson [2017] NZDC 9288.
2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3      Section 226(1). Maximum penalty seven years’ imprisonment.
4      Land Transport Act 1998, s 32(1)(a) and 32(3).     Maximum penalty three months’
imprisonment/6 months’ disqualification/$4,500 fine.
5      Summary Offences Act 1981, s 13A. Maximum penalty three months’ imprisonment/$2,000
fine.
6      Bail Act 2000, s 24. Maximum penalty three months’ imprisonment/$1,000 fine.
7      Section 38(a). Maximum penalty one year imprisonment/$2,000 fine.

ANDERSON v NEW ZEALAND POLICE [2017] NZHC 1566 [7 July 2017]

two breaches of supervision8 and one breach of community work.9 All other sentences were imposed concurrently.

[2] Mr Anderson’s appeal is based on the contention that 16 months’ imprisonment was manifestly excessive and that home detention should have been imposed.

[3] This judgment explains why I am dismissing Mr Anderson’s appeal and

upholding the sentences imposed by Judge Adeane.

Background

Unlawfully taking a motor vehicle

[4] At about 9.00 am on 30 October 2016, Mr Anderson stole a Toyota ute. He drove the vehicle to an address in Hastings where he met up with an associate. They then drove to Napier. At about 11am the vehicle was located in Napier and two men were seen leaving the area. Mr Anderson and his associate were located by police a short time later.

[5] Mr Anderson admitted the facts to police. In explanation he said he saw a ute with the keys in it, did not think anything of it at the time, hopped in and drove off. He admitted he was a disqualified driver.

Burglary

[6] At about 8.15pm on 19 February 2017, Mr Anderson was at an address on Huia Street, Hastings to visit Mr Cherry, the victim in this offending. Believing the victim to be away from the address, he entered the garage and took an Avanti pushbike, a laptop and a cell phone. The victim heard noises and found Mr Anderson leaving the address with the stolen property. When confronted,…

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: [2017] NZHC 1566
Decision Date: 7 July 2017

CaseChat Overview and Summary

In the case of Anderson v Police, Mr. Anderson appealed his sentence of 16 months' imprisonment imposed by Judge Adeane in the Hastings District Court. The appeal was based on the contention that the 16-month sentence was manifestly excessive and that home detention should have been imposed instead. The appeal was dismissed, and the sentences imposed by Judge Adeane were upheld.

The legal issues the court had to decide were whether the District Court Judge erred by not considering home detention as an available sentencing outcome and if the end sentence was manifestly excessive. The court found that, even if there was an error in the approach, it was not a case where Mr. Anderson's circumstances gave rise to an alternative sentence from imprisonment. The court concluded that the 16-month sentence was within range and not manifestly excessive, relying on three factors: multiple breaches of community work and supervision, Mr. Anderson's lack of remorse and disregard for authority, and issues with the proposed home detention address that could put the occupants at further risk.

The court also considered the purposes and principles of sentencing under the Sentencing Act 2002, and found that a sentence of imprisonment would hold Mr. Anderson accountable for the harm he had done, promote a sense of responsibility and acknowledgement of that harm, denounce the conduct in which Mr. Anderson was involved, deter Mr. Anderson or other persons from committing the same or similar offence, and be the least restrictive outcome that was appropriate in the circumstances.

As a result, the appeal was dismissed, and all aspects of the sentences imposed by Judge Adeane were upheld.

Orders