Baden Powell-Collins v Police - [2017] NZHC 1644

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000031 [2017] NZHC 1644

BETWEEN
BADEN POWELL-COLLINS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 July 2017

Appearances:

B P Kilkelly for Appellant
R D Smith for Respondent

Judgment:

17 July 2017

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Baden Powell-Collins, pleaded guilty in the Dunedin District Court to one charge of burglary. On 19 May 2017, he was sentenced to one year ten months’ imprisonment by Judge Turner. Mr Powell-Collins now appeals that decision on the basis that:

(a) the sentence of one year and ten months’ imprisonment is manifestly

excessive;

(b) Judge Turner erred in refusing to grant home detention.

Background

[2] Turning to the background in this matter, in February this year, the appellant
went to the victim’s residential dwelling and gained entry through a front window. He took two firearms and carry bags from a safe and loaded them into his car parked

POWELL-COLLINS v NEW ZEALAND POLICE [2017] NZHC 1644 [17 July 2017]

nearby before returning to the house to take more items. While the appellant was in the house, one of the occupants arrived home. She noticed the appellant climbing out of a window with a laptop. The appellant ran to his car driven by an associate and sped away. The following day, police searched the appellant’s address and recovered all of the stolen property. When spoken to, the appellant admitted the offending but declined to name the associate driving the vehicle.

District Court Decision

[3] In his sentencing notes Judge Turner in the District Court detailed the appellant’s extensive criminal record despite his relatively young age. Judge Turner noted at para [4]:

[4] As Mr Kilkelly, your counsel, has pointed out, you have previous convictions, 26 prior convictions in the District Court dating from 2008 until November 2016 and four appearances in the Youth Court between 2005 and
2007. Significantly and relevantly, your criminal history involves burglary convictions in 2009 and Youth Court appearances in 2005; conviction for other dishonesty offences – four convictions for theft in 2009, 2010 and 2011 together with an appearance in the Youth Court in 2007 on a theft matter; convictions for violence including serious violence offending – 2008 possession of an offensive weapon; 2009 possession of an offensive weapon;
2009 threatening to kill; 2009 assault with a weapon; 2011 injuring with intent to injure; 2013 assault with a weapon; 2013 wounding with intent to
injure, and your most recent conviction in 2016 possession of an offensive weapon. You have appearances in the Youth Court in 2007 for aggravated
assault and possession of an offensive weapon. In addition to all of that, you have convictions for failing to comply with Court sentences – in 2010 breach of release conditions and driving whilst disqualified and in 2011 breach of
home detention conditions.

[4] Bearing in mind the general principles and purposes of the Sentencing Act

2002, Judge Turner assessed the gravity of the appellant’s offending to be…

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 1644
Decision Date: 17 July 2017

CaseChat Overview and Summary

In the case of Baden Powell-Collins v Police, the appellant, Mr Baden Powell-Collins, appealed against his sentence for burglary imposed by the District Court. The central issue for the court was whether the sentence was manifestly excessive and whether the District Court judge had erred in refusing to grant home detention. The court had to determine whether the starting point and uplifts applied by the District Court were within the permissible range and whether the refusal to grant home detention was justified.

The High Court found that the starting point of two years' imprisonment was within the appropriate range, considering the appellant's premeditated and serious nature of the offending. The court justified the uplift for previous convictions and bail offending, noting the appellant's extensive criminal history and risk of reoffending. Regarding home detention, the court held that the District Court judge was entitled to refuse it based on the appellant's criminal history and non-compliance with previous conditions. The court concluded that the District Court judge's reasoning was sufficient and found no material error.

The appeal was dismissed, and the original sentence stood.

Orders