Becker v Police - [2017] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000037 [2017] NZHC 1073

BETWEEN
HEMI DONALD BECKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 May 2017

Appearances:
MemorandaFiled:

G Dixon for Appellant
S J Mallett for Respondent

On 12 May 2017 - Counsel for Appellant
On 16 May 2017 - Counsel for Respondent

Judgment:

22 May 2017

JUDGMENT OF GENDALL J

Introduction

[1] On 23 February 2017, the appellant, Hemi Donald Becker, was sentenced by Judge Couch in the District Court to a total of 27 months imprisonment after pleading guilty to the following charges:

(a) Receiving property exceeding $1000 in value (x 2); (b) Driving while disqualified, third or subsequent (x 2); (c) Theft;
(d) Reckless driving;

(e) Failing to stop when followed by red and blue flashing lights;

BECKER v NZ POLICE [2017] NZHC 1073 [22 May 2017]

(f) Failing to answer District Court bail;

[2] The appellant was also disqualified from driving for two years, nine months. He appeals both aspects of the sentence on the basis that the sentence is manifestly excessive.

Background

[3] In October 2016 the appellant was twice found driving while suspended.

[4] In November 2016, on an unrelated matter, the police attended an address where the appellant was present. He was found in possession of a stolen Holden Commodore motor vehicle valued at $30,000. It was displaying stolen registration plates, and identification tags had been removed from its firewall and engine bay. The appellant claimed he bought the vehicle through Trademe for $9,000.

[5] On 16 December 2016, the appellant purchased another stolen Holden Commodore motor vehicle for $5,500 from persons unknown. It too had stolen plates and missing identification tags. Two days later, the appellant took the car to a petrol station in Blenheim and filled it with $60 worth of fuel. He claimed to the staff he had left his wallet on the Picton ferry, and would have to go back and get it. The staff told him he could go and get his wallet but that he would have to leave the car behind. He drove off and did not pay for the petrol.

[6] The police were alerted and half an hour later located the appellant driving west at Renwick. The police attempted to stop the vehicle but the appellant accelerated heavily and sped away. He maintained excessive speeds of around
140km/h, including through roadwork areas with 30km/h speed limits. He was seen by police passing other motorists in the roadwork areas which contained loose surface gravel and where road workers were present on foot.

[7] Four hours later the police again located the appellant’s vehicle, stopped it, and arrested the appellant and a female associate. At the time the appellant admitted to taking the petrol but claimed he was not the driver of the vehicle while it was being pursued.

Jurisdiction and approach on appeal

[8] The appellant appeals as of right.1 This Court can only allow the appeal if it is satisfied that there is…

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 Becker v Police

Details

AGLC: Becker v Police [2017] NZHC 1073
Case: [2017] NZHC 1073
Decision Date: 22 May 2017

CaseChat Overview and Summary

Hemi Donald Becker appeals his sentence of 27 months imprisonment imposed by the District Court. He argues that the sentence is manifestly excessive. The appeal was heard by Gendall J, who found that the appeal must be dismissed. Becker was found guilty of multiple charges, including receiving property exceeding $1000 in value, driving while disqualified, theft, reckless driving, and failing to stop when followed by red and blue flashing lights. The District Court Judge sentenced Becker to 27 months imprisonment and disqualified him from driving for two years, nine months. Becker's appeal is based on the argument that the sentence is manifestly excessive, as the Judge failed to take into account rehabilitative steps taken by Becker prior to the offending and his remorse. The Court of Appeal has previously rejected any attempt by a sentencing Judge to tailor the length of the appropriate prison sentence so that it is artificially reduced to two years or less to make the offender eligible for home detention. Therefore, the Court found that the sentence imposed was not manifestly excessive, and the appeal must be dismissed.

Orders