Andrews v R - [2012] NZCA 61

IN THE COURT OF APPEAL OF NEW ZEALAND

CA455/2011
[2012] NZCA 61

BETWEEN SHANNON RICHARD ANDREWS
Appellant

AND THE QUEEN
Respondent

Hearing: 23 February 2012

Court: Wild, Ronald Young and Andrews JJ

Counsel: E J Forster for Appellant
J E Mildenhall for Respondent

Judgment: 5 March 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Andrews appeals sentences totalling six years imprisonment with a minimum period of imprisonment of three years, imposed on him in the Napier District Court by Judge Adeane on 24 June 2011.[1] Mr Andrews had pleaded guilty to four counts of receiving and one of burglary.
[1] R v Andrews DC Napier CRI-2009-020-3923, 24 June 2011 [sentencing remarks].
We outline the background and summarise the sentence before dealing in turn with each of the four points Mr Forster advanced in support of the appeal. We will refer to further relevant parts of the Judge’s sentencing remarks in dealing with each ground of appeal.

Background

Hawkes Bay was plagued with burglaries of dwelling houses in 2009. Over 2000 were reported to the police, who thought the true level was significantly higher.
The police had information that Mr Andrews was actively engaged in receiving the property stolen in the burglaries. On 2 September 2009 the police executed a search warrant at the home of a Ms Edmonds in Flaxmere in Hawkes Bay. Ms Edmonds was at home. Mr Andrews was also there. The two had been in a relationship for about 10 years and had two children, although Mr Andrews lived elsewhere.
In Ms Edmonds’ home the police found a considerable amount of stolen property.
The upshot was that Mr Andrews was charged with three counts of receiving stolen goods, as well as a conspiracy charge. The charges covered all sorts of household items, a Landrover Discovery, firearms, hunting gear, a camera and a laptop. Ms Edmonds was also charged with a number of counts of receiving.
Essentially the Crown case against Mr Andrews was that he was the active receiver and the one involved in selling or otherwise disposing of the stolen goods. The Crown alleged that Ms Edmonds was the passive receiver: her main role was to provide her house for the storage of the stolen goods.
Mr Andrews defended the charges. He was committed for trial. He applied repeatedly for bail, eventually successfully to Judge Rea on 29 March 2010. The fact that he was arrested within days for breaching his bail conditions did not deter him from again seeking bail. His applications were unsuccessful until Judge Adeane eventually again granted him bail. The Judge did that with what he termed “considerable misgivings”, but against “clear assurances of a personal kind given by Andrews to the Court”.[2]
[2] Sentencing remarks at [13].
For reasons not presently relevant, Judge Adeane on 10 February 2011 declined Mr Andrews’ request for a sentencing indication. When the trial of Mr Andrews and Ms Edmonds began…

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.

Continue reading Andrews v R

Details

AGLC: Andrews v R [2012] NZCA 61
Case: [2012] NZCA 61
Decision Date: 5 March 2012

CaseChat Overview and Summary

The appeal in Andrews v R was heard by the Court of Appeal of New Zealand, specifically Wild, Ronald Young, and Andrews JJ, on 23 February 2012. Shannon Richard Andrews appealed against sentences totaling six years imprisonment with a minimum period of three years, imposed on him in the Napier District Court by Judge Adeane on 24 June 2011. Mr Andrews had pleaded guilty to four counts of receiving and one of burglary. In the appeal, the appellant argued that the sentence was manifestly excessive, the discount for totality was insufficient, the sentence was disparate to that of his co-defendant, and the minimum period of imprisonment was unnecessary. The court considered each argument in turn and found that none of the grounds of appeal were successful.

The court found that the sentence of six years imprisonment was not manifestly excessive, as the scale of offending was somewhat worse than that of Mr Andrews, and the court had referred to relevant authorities to assist in the sentencing approach. The court also found that the discount for totality was sufficient, and that the concern on a sentence appeal was with the effective or end sentence, rather than the means the sentencing judge took to that end. The court further found that there was no disparity in the sentencing starting points of Mr Andrews and his co-defendant, Ms Edmonds, as the significant difference in their roles in the receiving and the number of counts they were sentenced on were taken into consideration. Finally, the court found that the minimum period of imprisonment was necessary to hold Mr Andrews accountable for the harm he had done, to denounce his conduct, and to deter others from embarking on professional involvement in burglaries and/or receiving.

The appeal was accordingly dismissed, and the sentences imposed on Mr Andrews were upheld.

Orders