Belle v Police - [2017] NZHC 877

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2017-488-3

CRI-2017-488-4 [2017] NZHC 877

BETWEEN
TE AHU BELLE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2017

Appearances:

T Spencer for Appellant
JW Wall for Respondent

Judgment:

4 May 2017

RE-ISSUED JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 May 2017 at 12.30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Belle v NZ Police [2017] NZHC 877 [4 May 2017]

Introduction

[1] On 19 January 2017, Mr Te Ahu Belle was sentenced by Judge G L Davis, having pleaded guilty to:

(a) one charge of aggravated robbery,1 for which the end sentence was

two years and seven months’ imprisonment;

(b) one charge of theft,2 for which the end sentence was one months’

imprisonment; and

(c) one charge of receiving stolen property valued in excess of $1000,3

for which the end sentence was one months’ imprisonment.

[2] The sentences are to be served concurrently.

[3] Mr Belle now appeals against this sentence on the grounds that his sentence was manifestly excessive and, particularly, there is such a disparity between his sentence and the sentence imposed upon his co-offender for the robbery that a miscarriage of justice had occurred.

Background facts

The offending

[4] At the time of offending, Mr Belle was aged 19 years. The charges of aggravated robbery and theft arose from events on the 23 and 24 April 2016. On the evening of 23 April, Mr Belle stole a hammer, two fishing reels, and various other items of property from a vehicle parked in Dargaville to which he had gained access by prising the hinge off the sun-roof. The value of the property was estimated at
$900.

1      Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.
2      Crimes Act, ss 219(a) and 223(c); maximum penalty one year’s imprisonment.
3      Crimes Act, ss 246 and 247(c); maximum penalty seven years’ imprisonment.

[5] In the early hours of the following morning, Mr Belle, together with Glen Inglis, aged 18, robbed two French tourists of money. The victims, M Menard and Mlle Joelle, were visiting New Zealand for five days and exploring the sites of the north. They had parked a rental van in a public parking area before consuming a meal and then going to sleep about 10.00 pm. At around 1.20 am on 24 April, the victims were awoken by Mr Belle and Mr Inglis, who were banging on the campervan window telling them to wake up. When M Menard got out of the van, he saw Mr Belle and Mr Inglis outside the van. In one hand Mr Belle was holding the stolen hammer; he had a beer in his other hand.

[6] Mr Belle raised the hammer up to stomach height and demanded that M Menard give him his money. M Menard tried to grab Mr Belle’s hammer; Mr Inglis then punched him twice in the head and pushed him. Mlle Joelle then handed Mr Belle approximately $320…

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 Belle v Police

Details

AGLC: Belle v Police [2017] NZHC 877
Case: [2017] NZHC 877
Decision Date: 4 May 2017

CaseChat Overview and Summary

In Belle v Police, the appellant, Te Ahu Belle, appealed his sentence imposed by Judge Davis for aggravated robbery, theft, and receiving stolen property. Belle argued that his sentence was manifestly excessive and that there was an unjustifiable disparity between his sentence and that of his co-offender, Glen Inglis. The court had to decide whether there was an error in the sentence imposed and whether a different sentence should be imposed. The primary ground of appeal was the gross and unjustified disparity between the sentences of Belle and Inglis.

The court found that Judge Davis's starting point of four years for aggravated robbery was within the range and justifiable, considering the vulnerability of the victims and the need for denunciation and deterrence. The uplift for the receiving charge and the discounts for youth, remorse, and rehabilitative efforts were also within the judge's discretion. However, the court found that the disparity between the starting points for Belle and Inglis was unjustifiable. Belle's active role in the robbery meant he should bear some responsibility for the immediate violent consequences of Inglis's intervention, but the difference in their roles did not justify a 45% longer starting point for Belle. The unfairness of the outcome was further demonstrated by the difference between the two types of sentences.

The court imposed a sentence of four months' home detention on Belle, taking into account the recommendations of the pre-sentence report and the need to emphasize rehabilitation while minimizing Belle's risk to the community. The court allowed the appeal in part by quashing Belle's sentence of imprisonment on the charge of aggravated robbery, imposing a sentence of four months' home detention instead. The sentence of home detention is to be served at 69 Logan Street, Dargaville for its duration unless otherwise authorised by the Probation Officer.

Orders