Atkins v Police - [2024] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-019

[2024] NZHC 1730

BASS MANU ATKINS

v

NEW ZEALND POLICE

Hearing: 25 June 2024

Counsel:

S J Parsons for Applicant

G L Duncan for Respondent

Judgment:

3 July 2024

JUDGMENT OF GRAU J

[Sentence appeal]

Introduction

[1] On 20 May 2024, in the Palmerston North District Court, Judge Krebs sentenced Bass Atkins to two years and nine months’ imprisonment on the following charges:

(a)driving whilst disqualified (third or subsequent);1

(b)wilful damage;2

1 Land Transport Act 1998, s 32(4) (maximum penalty of two years’ imprisonment or $6,000 fine, court must disqualify driver for one year or more).
2 Summary Offences Act 1981, s 11 (maximum penalty of three months’ imprisonment or $2,000 fine).

ATKINS v NEW ZEALND POLICE [2024] NZHC 1730 [3 July 2024]

(c) 9 x theft (over $1,000);3 and (d) theft ($500-$1,000).4

[2] Mr Atkins appeals his sentence. He says the starting point was too high and there is a wide disparity between him and a co-offender. He considers the adjustment for totality was made on an incorrect basis and was insufficient. The uplift for personal aggravating factors was too high and no credit was given for personal mitigating factors. An appropriate end sentence would have been home detention.

[3] The respondent agrees the starting point was too high and the Judge could have given credit for personal factors but says the reduction for time spent on electronically monitored (EM) bail was generous and the uplift for personal aggravating factors could have been higher. Any difference to the final sentence would be small and it would amount to tinkering to reduce it. Imprisonment was the appropriate outcome.

The offending

[4]The offending is summarised in the decision of Judge Krebs:5

[1] Mr Atkins, you were sentenced to 10 months’ imprisonment in January 2022. There were release conditions imposed, and you have breached those repeatedly. You also committed an offence of driving while disqualified. So, on 26 October 2022, you were sentenced to two further months’ imprisonment for those, principally for the breach of release conditions, and further release conditions were imposed.

[2] You repeatedly breached those release conditions after you were released following 26 October 2022. As well as that, you have a conviction for escaping custody.

[3] Therefore, on 11 July last year, you were sentenced to a further six months, with release conditions imposed again.

[4] Now you face another series of charges. You were eventually arrested and charged with disqualified driving for a third or subsequent occasion on 12 October last year. There were several failures to appear in court, and warrants for your arrest were issued. You were eventually arrested in December last year and, while at court here, you did some damage to one of the cells in the court building. So, you are now charged also with causing that damage.

3 Crimes Act 1961, ss 219 and 223(b) (maximum penalty of seven years’ imprisonment).

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 Atkins v Police

Details

AGLC: Atkins v Police [2024] NZHC 1730
Case: [2024] NZHC 1730
Decision Date: 3 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Bass Manu Atkins appealed his sentence imposed by the Palmerston North District Court. Atkins was sentenced to two years and nine months' imprisonment for multiple charges, including driving while disqualified, wilful damage, and theft. Atkins argued that the starting point for his sentence was too high, and there was a significant disparity between his sentence and that of a co-offender. He also contended that the adjustment for totality was based on an incorrect premise and was insufficient, and the uplift for personal aggravating factors was too high while no credit was given for personal mitigating factors. Atkins believed that an appropriate end sentence would have been home detention.

The legal issues in this case involved whether the starting point for the sentence was appropriately determined, whether the adjustment for totality was correctly applied, whether the uplift for personal aggravating factors was excessive, and whether personal mitigating factors should have been considered. The court considered the principles and purposes of sentencing, including accountability, deterrence, and the protection of the community. The court also examined the sentencing principles applicable to co-defendants, emphasizing the importance of treating like cases alike while considering relevant differences.

The High Court found that the starting point for the theft charges was indeed too high, as it was the result of cumulatively adding starting points for each charge rather than applying an uplift for a series of similar offences. The court reassessed the starting point by considering the most serious theft and applying an uplift for the remaining thefts. The court also noted that a reduction for personal mitigating factors should have been applied, given the clear addiction-fueled nature of the offending. However, the court concluded that the need to protect the community from Atkins' ongoing offending took priority.

The appeal was allowed, and the sentence was set aside and substituted for 23.5 months' imprisonment. The court acknowledged that home detention was available but agreed with the District Court that imprisonment was necessary to achieve the relevant purposes and principles of sentencing in this case.

Orders