Arbuckle-McCreath v Police - [2020] NZHC 2893

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-476-19

[2020] NZHC 2893

BETWEEN
KALYM MICHAEL ARBUCKLE- McCREATH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 03 November 2020

Counsel:

K M Henry for the Appellant A R McRae for the Respondent

Judgment:

4 November 2020

JUDGMENT OF DOOGUE J

[1] On 9 September 2020, Judge Mark Callaghan sentenced the appellant, Kalym Arbuckle-McCreath, to three months’ community detention and nine months’ supervision on two charges of burglary,1 and one charge of intentional damage.2

[2] For the sentence of community detention, the Judge imposed a curfew from 7 pm on a Friday until 7 am on a Saturday, and from 7 pm on a Saturday until 7 am on a Monday. Mr Arbuckle-McCreath appeals his sentence, and challenges only the length of his curfews as being manifestly excessive.

Factual background

[3] On 22 August 2019, Mr Arbuckle-McCreath and an associate drove to the victim’s farm in the Maniototo area. Mr Arbuckle-McCreath entered the property and

1 Crimes Act 1961, s 231(1)(a); maximum penalty of ten years’ imprisonment.
2 Section 269; maximum penalty seven years’ imprisonment.

ARBUCKLE-McCREATH v NEW ZEALAND POLICE [2020] NZHC 2893 [4 November 2020]

walked to an open bay shed, where he knew farm vehicles were located. He removed a Toyota land cruiser valued at $50,000, and his associate drove it towards Alexandra. Mr Arbuckle-McCreath remained in the area as a lookout, and then followed his associate in a separate vehicle.

[4] At another address, Mr Arbuckle-McCreath discarded a dog box from the rear of the land cruiser, and then continued driving. Mr Arbuckle-McCreath and his associate then arrived at Little Valley Station in Alexandra and drove to a large shipping container located on the property, and forced the lock on the container. They took a number of items before leaving the property, including a Can-Am quad bike, two Yamaha off road motorbikes, a further 2017 off road motorbike, a water pump, and a large quantity of tools and equipment. The value of the combined property taken was about $25,000.

[5] They then drove to Pleasant Point, where they met with another associate and arranged for the motorbikes and land cruiser to be sold in Christchurch.

[6] On 22 October 2019, the police located the Can-Am quad bike stashed away on the side of Little Valley Road. It was in good condition and had not sustained any damage, but the key was never located. Mr Arbuckle-McCreath’s address was searched on 25 October 2019, and during the course of that search a number of items stolen from Little Valley Station were located, including a motorbike helmet and other assorted tools.

[7] Mr Arbuckle-McCreath was arrested on 4 November, and following that arrest the police located numerous tools and batteries stolen from Little Valley Station. When spoken to, Mr Arbuckle-McCreath stated that all the items at his address had been left by associates.

[8] On the intentional damage charge, Mr Arbuckle-McCreath went to an…

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: [2020] NZHC 2893
Decision Date: 4 November 2020

CaseChat Overview and Summary

Kalym Arbuckle-McCreath appeals against his sentence, imposed by the District Court, which was three months’ community detention and nine months’ supervision on two charges of burglary, and one charge of intentional damage. Arbuckle-McCreath challenges the length of his curfews as being manifestly excessive. The High Court must determine if the District Court erred in imposing the sentence and whether a different sentence should be imposed. This requires an assessment of whether the sentence is manifestly excessive and not justified by the relevant sentencing principles.

The court found that Arbuckle-McCreath's concerns about the length of his curfews were not raised before the District Court. As such, he cannot show that the curfew period was manifestly excessive or wrong in principle. The proper avenue for Arbuckle-McCreath to seek to vary his curfew hours is through an application to the District Court under section 69I of the Sentencing Act, on the basis of factual circumstances that were not before the District Court at sentencing. In relation to his ability to seek dairy farm employment with its irregular hours, Arbuckle-McCreath could seek permission of his probation officer to leave his curfew address during the hours of his curfew period “to seek or engage an employment” under section 69E(2)(c)(i) of the Sentencing Act. The appeal to the High Court was not the appropriate course of action.

The appeal is dismissed.

Orders