Baller v Police - [2018] NZHC 2709

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000043 [2018] NZHC 2709

BETWEEN
ROGER KENNETH BALLER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 October 2018

Appearances:

R Quin for Appellant
A R A Pell for Respondent

Judgment:

18 October 2018

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BALLER v NEW ZEALAND POLICE [2018] NZHC 2709 [18 October 2018]

[1] Mr Baller pleaded guilty in the District Court to the following charges:

(a) Burglary (x 3)

(b) Theft (over $1000)

(c) Theft (between $500 and $1000) (x 2)

(d) Possession of three methamphetamine pipes

(e) Possession of 0.1 of a gram of methamphetamine

(f) Possession of 1 gram of cannabis

(g) Breaching a sentence of supervision

[2] On 3 August 2018, Judge Burnett sentenced Mr Baller to 24 months imprisonment.1 She declined to grant him leave to apply for home detention.
Mr Baller appeals against sentence on the basis that the Judge adopted starting points that were too high, and this resulted in an end sentence that was manifestly excessive. He also contends the Judge erred in declining to grant him leave to apply for home detention.

The charges

[3] Mr Baller has an acknowledged drug addiction. His offending reflects that fact. The theft and burglary charges all relate to incidents over a six week period in which Mr Baller stole CCTV cameras from premises. This offending was aggravated by the fact that several of his victims were charities, or not for profit organisations, who rely on public donations for funding and will no doubt struggle to replace the property he stole from their premises.

[4] The offending resulted in Mr Baller stealing property worth approximately

$5000. It is highly likely in my view that the CCTV cameras that he stole found their

1 New Zealand Police v Baller [2018] NZDC 15957.

way into the hands of criminals. He no doubt committed the offences in order to feed his drug addiction.

[5] The police executed a search warrant at Mr Baller’s address on 24 May 2018. There they discovered three methamphetamine pipes, 0.1 of a gram of methamphetamine and one gram of cannabis.

The Judge’s decision

[6] In selecting a starting point for the burglary charges, the Judge referred to the well-known Court of Appeal decision in Arahanga v R.2 In that case the Court of Appeal declined to set a guideline or tariff starting point for burglaries, but said that a burglary of residential premises at the minor end of the scale is likely to result in a starting point of between 18 months and two years six months imprisonment.3 The Judge then adopted an overall starting point of 15 months imprisonment on the burglary charges. She applied a six month uplift to reflect the three charges of theft, a four month uplift to reflect the drugs charges and a one month uplift on the charge of breaching the sentence of supervision. The Judge also applied 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: [2018] NZHC 2709
Decision Date: 18 October 2018

CaseChat Overview and Summary

Mr Baller appealed against his 24-month imprisonment sentence and the denial of leave to apply for home detention. The appeal was heard in the High Court of New Zealand in Hamilton. The central issue was whether the sentence imposed was manifestly excessive, and if the Judge was correct to deny leave to apply for home detention.

The court considered the starting points for the charges, the uplifts for multiple charges, drug charges, and previous convictions, and the discounts for guilty pleas. The court determined that the starting point was appropriately set at 21 months, but the uplifts were excessive. It also found that the Judge erred in denying leave to apply for home detention, as Odyssey House could accommodate an electronically monitored sentence. The court concluded that the sentence of 24 months imprisonment was not manifestly excessive, but the denial of leave to apply for home detention was erroneous.

The final order was that the appeal against the sentence of 24 months imprisonment was dismissed, but Mr Baller was granted leave to apply for home detention under section 80I of the Sentencing Act 2002.

Orders