Banks v Police - [2020] NZHC 859

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000036

[2020] NZHC 859

BETWEEN
REUBEN BANKS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2020

Appearances:

C G Nolan for Appellant

S L Dayal (via VMR) for Respondent

Judgment:

1 May 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 May 2020 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…1 May 2020

Introduction

[1] The appellant, Mr Banks, was sentenced to three years and eight months’ imprisonment on the following charges:

(a)burglary (3);

(b)obtains by deception (2);

BANKS v NEW ZEALAND POLICE [2020] NZHC 859 [1 May 2020]

(c)theft over $1000 (2);

(d)theft under $500 (2);

(e)possession of methamphetamine;

(f)possession of methamphetamine utensils;

(g)reckless driving;

(h)failure to stop for red and blue lights;

(i)failing to remain stopped;

(j)wilful damage;

(k)failure to answer bail.

Mr Banks was also disqualified from holding or obtaining a driver license for 18 months and ordered to pay in $5,028 reparation.

[2] Mr Banks now appeals that sentence on the grounds the sentence of imprisonment imposed was manifestly excessive.

Facts

[3] Mr Banks was granted parole on 5 March 2018 while serving a four year sentence for robbery and aggravated robbery. The current offending took place while he was subject to parole conditions.

[4] On the night of 26 July 2019 Mr Banks went into a garage and took goods valued at $1,250. This led to the first charge of burglary.

[5] On 30 July 2019 Mr Banks advertised a cell phone online, received payment of $650, but then did not deliver the cell phone. On 1 August 2019 Mr Banks repeated

this offending, receiving payment of $600. He was charged with two charges of obtaining by deception.

[6] On 2 August 2019 Mr Banks was arrested on the first burglary charge. He was found in possession of 0.20 of a gram of methamphetamine and a methamphetamine pipe. He was charged with possession of methamphetamine and methamphetamine utensils.

[7] On 3 August 2019 Mr Banks was released on bail. That same day he stole a Samsung cell phone valued at $1,500. This led to the first charge of theft over $1,000.

[8] On 6 August 2019, in the early morning, Mr Banks was stopped by police while driving a car in suburban Christchurch. A police car was parked in front of the vehicle. When the officer got out to speak to Mr Banks he accelerated, ramming into the police car and pushing it out of the way. A second police car pursued Mr Banks, with red and blue lights and siren. Mr Banks drove at speeds in excess of 90 kilometres per hour without lights turned on, through suburban streets. Police eventually abandoned pursuit due to the dangerous speed. Mr Banks was charged with reckless driving, failing to stop for red and blue lights, failing to remain stopped and wilful damage.

[9] On the night of…

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 859
Decision Date: 1 May 2020

CaseChat Overview and Summary

The appeal in Banks v Police was heard by the High Court of New Zealand. The appellant, Reuben Banks, appealed his sentence for multiple charges including burglary, theft, and drug-related offenses, arguing that the sentence of three years and eight months' imprisonment was manifestly excessive. The court was required to determine whether the sentence imposed by the District Court was justified under the relevant sentencing principles or if it was manifestly excessive. The central legal issues were whether the District Court correctly calculated the sentence starting point, applied the appropriate uplifts and discounts, and whether the sentence imposed was within the range that could be justified by accepted sentencing principles.

The High Court found that the District Court had erred in calculating the overall sentence starting point, which should have been four years and four months' imprisonment instead of four years and seven months. However, the court noted that correcting this error would not necessarily result in a commensurate adjustment to the final sentence, given the adjustments for totality and other mitigating factors. The court reviewed the entire sentencing exercise and found that the totality of the issues raised by the appellant warranted allowing the appeal. The court reduced the sentence by eight months, resulting in a final sentence of three years' imprisonment, which it deemed appropriate given the circumstances. The High Court quashed the original sentence and substituted it with a sentence of three years’ imprisonment to be allocated across the various charges as specified in the judgment.

Orders