Baker v Police - [2023] NZHC 3386

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-0089

[2023] NZHC 3386

BETWEEN
JOSHUA RUATEKAUMATAHI JOHNDALAH BAKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 November 2023 (by VMR)

Appearances:

E L Reilly for Appellant

A A Maino for Respondent

Judgment:

27 November 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 27 November 2023 at 3.30 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Lance Lawson Ltd, Rotorua
Gordon Pilditch, Rotorua

BAKER v POLICE [2023] NZHC 3386 [27 November 2023]

Introduction

[1] The appellant, Mr Baker, appeals against his sentence of three years and eight months’ imprisonment imposed by Judge Collin on 20 charges of burglary and two of unlawful possession of a firearm.1

[2] Mr Baker contends the sentence is manifestly excessive. In particular, Ms Reilly, counsel for Mr Baker on appeal, submits that the Judge’s starting point of seven years’ imprisonment on the burglary charges was too high and should not have exceeded six years.

Background

Burglary offending

[3] Between April and September 2022, Mr Baker and his co-offender, Mr Pomare, committed 20 well planned burglaries throughout New Zealand. They targeted retail outlets such as Four Square supermarkets and petrol stations, and often, if not always, travelled in rental cars.

[4] Mr Baker and Mr Pomare used the same modus operandi for each burglary. They dressed in black and wore gloves, and used a crowbar to smash into premises and to force open cigarette cabinets and cash registers. They would then depart with cigarettes and cash and other items, leaving much physical damage in their wake. The total loss caused by their offending was $185,129, comprising $127,407 in stolen property and $57,720 in damage.

[5] Numerous victim impact statements were filed. Proprietors would arrive at their premises to find considerable damage, necessitating repairs and/or replacement hardware, and suffered loss they could ill-afford to suffer. Such offending has a dispiriting effect on shopkeepers, and in this case many of those affected were serving small, local communities.

1 Police v Baker [2023] NZDC 15839.

Unlawful possession of a firearm offending

[6]Mr Baker committed the firearms offending on 15 September 2022.

[7] Mr Baker hired a rental car in Tauranga, drove to his home in Rotorua and then placed several items, including a double-barrel sawn-off shotgun and eight rounds of 12-gauge ammunition, into the car. Later that day, Mr Baker drove to an address in Lower Hutt.

[8] On 16 September 2022, the police executed search warrants on the vehicle and the address in Lower Hutt. The police located the sawn-off shotgun and ammunition in the boot of the vehicle, the shotgun then being loaded with two rounds of ammunition.

Sentencing

[9] As stated above, the Judge adopted a starting point of seven years’ imprisonment for the burglaries. The Judge then uplifted that by six months for the firearms offending, resulting in an overall starting point of seven years and six months’ imprisonment, or 90 months.

[10] The…

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 Baker v Police

Details

AGLC: Baker v Police [2023] NZHC 3386
Case: [2023] NZHC 3386
Decision Date: 27 November 2023

CaseChat Overview and Summary

Joshua Ruatekaumutahi Johndahl Baker appeals against his sentence of three years and eight months' imprisonment imposed by Judge Collin on 20 charges of burglary and two charges of unlawful possession of a firearm. The appeal focuses on whether the sentence is manifestly excessive, with Baker's counsel arguing that the starting point of seven years' imprisonment for the burglary charges was too high and should not have exceeded six years.

The High Court examined the severity of Baker's offending, which included 20 well-planned burglaries targeting retail outlets throughout New Zealand between April and September 2022. Baker and his co-offender, Mr Pomare, caused a total loss of $185,129, comprising $127,407 in stolen property and $57,720 in damage. The court also considered the aggravating factors such as the number of offences, the degree of planning and premeditation, and the geographical extent of the offending. Additionally, the court reviewed the mitigating factors that led to a reduction in the sentence, such as Baker's guilty pleas, remorse, and matters in his background that contributed to his offending.

The court considered the arguments from both counsel and reviewed relevant precedents. While acknowledging that the starting point might have been slightly too high due to the commercial, not residential, nature of the targeted premises, the court determined that the case falls between the precedents of Pompey and Nguyen. The court found a starting point of six years and six months' imprisonment appropriate but not less. Therefore, the court dismissed the appeal, maintaining the original sentence with a minor adjustment, as any further tinkering would be inappropriate.

Orders