Bates v R - [2016] NZCA 456

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/2016
[2016] NZCA 456

BETWEEN	THOMAS WESLEY BATES Appellant
AND	THE QUEEN Respondent

Hearing:	5 September 2016
Court:	Miller, Courtney and Woodhouse JJ
Counsel:	A M Dooney for Appellant A J Ewing for Respondent
Judgment:	23 September 2016 at 10.00 am

JUDGMENT OF THE COURT

Subject to provision of a suitable home detention residence report, the appeal against sentence will be allowed, the sentence of imprisonment quashed, and a sentence of home detention substituted.

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REASONS OF THE COURT

(Given by Woodhouse J)

Introduction

Mr Bates appeals against a sentence of 18 months’ imprisonment for a residential burglary. The sentence was imposed by Judge Harvey in the Whangarei District Court on 21 June 2016.[1]
[1]Police v Bates [2016] NZDC 11289.
Mr Bates was found guilty of the charge following a trial before Judge Harvey and a jury. The sole issue on appeal is whether the Judge was in error in imposing a sentence of imprisonment rather than a sentence of home detention.

The burglary

On 19 May 2015 the victims, Mr and Mrs McGregor, encountered Mr Bates as they left their home. They engaged briefly in conversation with Mr Bates and his girlfriend who said they were looking for their dog. The McGregors then left. Shortly afterwards the alarm in their home went off, to which they were alerted by cellphone. On their return, the McGregors found that an iPhone and $15,000 worth of jewellery were missing. The jewellery has not been recovered.
Police were able to trace the phone electronically to a house in Whangarei. It was Mr Bates’ home. He answered the door. Inside police found the stolen iPhone. They also found two cannabis bongs and six grams of cannabis. When shown a photo montage, Mrs McGregor immediately identified Mr Bates.
In addition to the charge of burglary, Mr Bates was charged with possession of the cannabis and possession of a cannabis bong. He pleaded guilty to the two cannabis charges and was sentenced on them when he was sentenced for the burglary. He had been remanded in custody on 7 August 2015 and admitted to electronically monitored bail (EM bail) on 9 September pending trial, which was held on 30 May 2016.

Personal circumstances: criminal history and pre-sentence report

Mr Bates was aged 26 at the time of the offence. He has one previous conviction for burglary. This was a burglary “by day” in July 2007, when he was aged 18. He was sentenced to five months’ home detention. He has seven further convictions through to June 2010. All are for minor, or relatively minor, offences, and none is relevant.
In the pre-sentence report the probation officer recorded that although Mr Bates said he was sorry for the victims for having their home violated, he claimed to have no knowledge of the missing jewellery.
The probation officer assessed Mr Bates’ risk of reoffending as low, based on his offending history in the preceding six years. She said:
Mr…

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 Bates v R

Details

AGLC: Bates v R [2016] NZCA 456
Case: [2016] NZCA 456
Decision Date: 23 September 2016 at 10.00 am

CaseChat Overview and Summary

In Bates v R, the appellant, Thomas Wesley Bates, appealed against a sentence of 18 months' imprisonment imposed by Judge Harvey in the Whangarei District Court for residential burglary. The primary issue was whether the trial judge erred in imposing a custodial sentence instead of a sentence of home detention. Bates, who had a prior conviction for burglary, was found guilty of breaking into the McGregors' home and stealing an iPhone and $15,000 worth of jewellery. The trial judge emphasised the need to send a deterrent message and rejected a submission for a sentence short of imprisonment.

The Court of Appeal, consisting of Miller, Courtney, and Woodhouse JJ, found the sentence to be manifestly excessive. The court held that home detention would meet the punitive aspects of sentencing while imposing the least restrictive outcome. The court also noted that the previous burglary conviction, occurring eight years prior, did not justify a custodial sentence. Additionally, the significant time Bates had already spent in custody and on electronic bail was insufficiently accounted for by the trial judge. Consequently, the Court allowed the appeal, quashed the sentence of imprisonment, and substituted a sentence of home detention for four months, subject to the provision of a suitable home detention residence report. The sentence of home detention will be subject to standard and special post-detention conditions.

Orders