Andrews v Police - [2015] NZHC 2496

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-470-10 [2015] NZHC 2496

BETWEEN
ADAM KIRKHAM ANDREWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 October 2015

Counsel:

N M Dutch for Appellant
R W Jenson for Respondent

Judgment:

12 October 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: Nicholas Dutch (Tauranga) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent

ANDREWS v POLICE [2015] NZHC 2496 [12 October 2015]

Introduction

[1] Mr Andrews was sentenced on 7 September 2015 after having pleaded guilty to the following charges:

(a) Receiving property (over $1000), which carries a maximum sentence

of seven years’ imprisonment.1

(b)Possession of cannabis plant (class C drug), which carries a maximum sentence of three months’ imprisonment or a fine of up to $500.2

(c) Breach of home detention conditions, which carries a maximum sentence of one year of imprisonment or a fine of up to $2000.3

[2] The sentencing Judge, Judge Geoghegan, imposed an effective sentence of

nine months’ imprisonment.4 Mr Andrews appeals that sentence.

Facts

Receiving charge

[3] Sometime between 27 March 2012 and 31 March 2012 a shed on Pahoia

Beach Road was broken into and items of property were stolen including a Yamaha

15 horsepower outboard motor and fuel container, and Shimano 6500 bait runner and combination rod and reel set. The Police executed a search warrant of Mr Andrews’s address on 23 February 2015 and located the stolen motor and fuel tank attached to his boat. The Police also found the combination rod and reel set in the Mr Andrews’s boat.

[4] In explanation, Mr Andrews said that he had had the motor for over a year and had bought it in November 2013 for $1,000. The Police asked Mr Andrews
from whom he had bought the motor. He replied that he needed to do some research.

1      Crimes Act 1961, ss 246, 247
2 Misuse of Drugs Act 1981, s 7(1)(a) and 7(2).
3      Sentencing Act 2002, s 80S.
4      Police v Andrews [2015] NZDC 17874.

The Police spoke to Mr Andrews again on 20 May 2015. At that time he claimed that he had bought the outboard motor from a person who he named and he claimed to have found the reel and rod set washed up on the beach at Kaituna Cut.

Possession of cannabis and breach of home detention conditions charges

[5] Mr Andrews had been sentenced to three months’ home detention with six months’ post detention conditions on 13 April 2015 at the Tauranga District Court in relation to the burglary of a shed. The shed in question was the same shed at Pahoia Beach Road from which the outboard motor, the subject of the receiving charge, was taken in 2012.

[6] A special condition of the home detention sentence was not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence of home detention. Mr Andrews confirmed that he understood the conditions of his sentence.

[7] While serving his sentence of home detention on 4 June 2015,…

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: [2015] NZHC 2496
Decision Date: 12 October 2015

CaseChat Overview and Summary

The appellant, Adam Kirkham Andrews, appeals against his nine-month imprisonment sentence imposed by Judge Geoghegan. The sentence was imposed for receiving property, breaching home detention conditions, and possession of cannabis. Mr Andrews' counsel argues that the sentence is manifestly excessive, that Judge Geoghegan erred in not imposing a sentence of home detention, and that there was no basis for an order of reparation for $3,337.27. The Crown agrees that the sentence needs to be reconsidered but for different reasons than those advanced by Mr Dutch. The Crown submits that the reparation order was erroneous and also needs to be reconsidered. The issues for the Court are whether the sentence was manifestly excessive, whether the Judge erred in not imposing a sentence of home detention, and whether there was a basis for an order of reparation for $3,337.27. The Court concludes that the sentence was manifestly excessive and that Judge Geoghegan erred in imposing a sentence of imprisonment instead of home detention. The Court allows the appeal in part and replaces the sentence with four months’ imprisonment for receiving property, two months’ imprisonment for the breach of home detention and possession of cannabis charges, and reparation of $411.

The Court finds that the sentence imposed by Judge Geoghegan was manifestly excessive and that the starting point of six months’ imprisonment for the receiving charges was appropriate. The Court also finds that the starting point of three months’ imprisonment for the breach of home detention and possession of cannabis charges was appropriate. The Court adjusts the sentence based on personal mitigating and aggravating factors and Mr Andrews' guilty plea and concludes that a sentence of 12 months' imprisonment was appropriate. However, the Court considers the sentence in the light of the burglary sentence and decides that a sentence of 12 months' imprisonment was disproportionate to the overall offending. The Court reduces the total sentence to be served by three months to account for the totality principle and concludes that Mr Andrews should be sentenced to a total of six months' imprisonment on the three charges.

The Court also finds that Judge Geoghegan did not err in imposing a sentence of imprisonment instead of home detention. The Court agrees with Judge Geoghegan that the amount of cannabis that Mr Andrews had in his possession was not an insignificant amount and that he needs to be held accountable for that offending. The Court is not satisfied that a further sentence of home detention is proportionate to punish Mr Andrews for the combined cannabis, breach of home detention, and receiving offending. The Court also agrees with Judge Geoghegan that a sentence of imprisonment is required to publicly denounce Mr Andrews' breach of the home detention condition and to deter both him and other offenders from similar offending.

Finally, the Court finds that there was a basis for an order of reparation for $411. The Court reduces the reparation ordered from $3,337.27 to $411, which is the cost of reinstating the motor once it was recovered. The Court concludes that Mr Andrews should pay reparation for the loss he has caused to the victim.

Orders