Bell v R

Case [2014] NZHC 3105 5 December 2014

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-25 [2014] NZHC 3105

BETWEEN
CARL ALAN BELL

Appellant

AND

THE QUEEN Respondent

Hearing: 19 November 2014

Appearances:

A Dawson for the Appellant
C E R Power for the Respondent

Judgment:

5 December 2014

JUDGMENT OF MALLON J

Introduction

[1] Mr Bell was convicted of 10 counts of burglary,1 two counts of unlawfully taking a motor vehicle,2 one count of theft of a motor vehicle,3 two counts of theft,4 and one count of assault.5 He was sentenced in the District Court at Dunedin to five years imprisonment, with a minimum period of imprisonment of two and a half years.6 He appeals against his sentence on the ground that it is manifestly excessive.

The offending

[2] The first four burglaries were committed by Mr Bell and a co-offender, Ms Livesey. They drove around in Ms Livesey’s vehicle and targeted semi-secluded industrial and rural properties to burgle. On the night of 7/8 March 2014 they went
to an industrial site where they took copper wire from inside the building, a radiator

1      Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years imprisonment).
2      Section 226(1) (maximum penalty of seven years imprisonment).
3      Sections 219 and 223(b) (maximum penalty of seven years imprisonment).
4      Sections 219 and 223(d) (maximum penalty of three months imprisonment).
5      Section 196 (maximum penalty of one year imprisonment).
6      R v Bell DC Dunedin CRI-2014-012-1252, 23 July 2014.

BELL v R [2014] NZHC 3105 [5 December 2014]

from a Land Rover, and a battery from a digger. On a date between 9 and 30 March

2014, they broke into another property, where they took brass fittings and other metals. On 31 March 2014, they entered a farm property and removed brass tap fittings and copper pipes, as well as lead pipes. On the night of 7/8 April 2014 they entered an industrial yard, took brass fittings, a socket set, and a chainsaw.

[3] On the night of 18/19 April 2014 Mr Bell took a car from a residential street. He changed the plates and drove around with it for a few days before selling it to a wrecker for $1,500. On the night of 20/21 April 2014 Mr Bell broke into a residential property and took jewellery, perfume and alcohol to the value of roughly
$3,000.

[4] On 25 April 2014 Mr Bell stole a car. He stole license plates from a vehicle in a car yard and put those on the car he had stolen. He then drove to another location where he sold some scrap metal, and then broke into a cottage where he took a copper planter, alcohol and meat. On 27 April 2014 he broke into a rural property and took shoes, clothing, petrol, a petrol tank, and another chainsaw.

[5] On 29 April 2014 the police found one of the vehicles Mr Bell had stolen. Inside the car they found many of the stolen items. Mr Bell then went to a car…

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 Bell v R

Details

AGLC: Bell v R [2014] NZHC 3105
Case: [2014] NZHC 3105
Decision Date: 5 December 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Mr Carl Alan Bell against his sentence. Mr Bell was convicted of multiple counts of burglary, theft, and assault. The District Court at Dunedin sentenced him to five years imprisonment with a minimum non-parole period of two and a half years. The primary issue in this appeal was whether the sentence imposed by the District Court was manifestly excessive. The court examined the nature and seriousness of the offending, the offender’s history, and the totality principle in sentencing.

The High Court reviewed the offending, which included numerous burglaries of industrial and rural properties, theft of motor vehicles, and an assault on a police officer. The court noted that the offending was driven by Mr Bell’s addiction to opiates. The District Court had set a starting point of four and a half years for the burglaries and added uplifts for the motor vehicle offences, previous convictions, and offending on parole. The Court found that the starting point for the burglaries was too high, and the uplifts for the motor vehicle offences and previous convictions were excessive. By comparing the present case with other similar cases, the Court determined that a starting point of no more than four years was appropriate. Additionally, the Court found that a five percent discount for Mr Bell’s participation in a restorative justice conference and his expressed remorse was warranted, reducing the sentence further.

The Court concluded that the total sentence of five years with a 30-month minimum non-parole period was manifestly excessive. The appeal was allowed, and the District Court sentences were quashed. In their place, the Court imposed a sentence of three years and six months for each of the burglary charges (concurrent), six months for each of the unlawful taking of a motor vehicle charges (concurrent), six months for the theft of a motor vehicle (concurrent), one month for the other thefts (concurrent), and three months for the assault (cumulative). The minimum non-parole period was reduced to 21 months.

Orders