Bergman v The Queen - [2018] NZHC 2484

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI 2018-406-7

[2018] NZHC 2484

BETWEEN
JAYDEN TERRY BERGMAN

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 September 2018 via AVL

Appearances:

A J Heward for appellant S J Revell for respondent

Judgment:

21 September 2018

JUDGMENT OF MALLON J

Introduction

[1] Jayden Bergman was convicted of burglary and aggravated burglary having pleaded guilty to those charges.1 He was sentenced by Judge Butler in the Blenheim District Court on 8 May 2018 to two years and two months’ imprisonment.2 The end sentence meant home detention did not fall to be considered. Mr Bergman appeals against sentence on the basis that information on his psychological history not available to counsel or the Judge at the time of sentencing would have led to a different outcome.

The facts

[2] On 14 July 2017 at around 1 am, Mr Bergman forced his way into a locked ice- cream shop in Timaru. He stole the cash register coin tray and ran out of the shop. A

1 Crimes Act 1961, ss 231 (maximum penalty 10 years) and 232 (maximum penalty 14 years).
2 R v Bergman [2018] NZDC 9111.

BERGMAN v R [2018] NZHC 2484 [21 September 2018]

short time later he returned and took a soft-drink and two ice-creams. He ran off and was chased by two security officers.

[3] On 19 December 2017 at around 2.20 am, Mr Bergman, carrying a 11.5 cm kitchen knife in his pocket, entered an unlocked house in Nelson. He was searching through some bedrooms when the male occupant of the house woke up and confronted him. There was a physical altercation during which Mr Bergman was forced against a window, causing it to break. Mr Bergman threatened the occupant, saying he was going to stab him. When the police spoke to Mr Bergman he admitted these facts and said he carried the knife for his protection.

[4] At the time of this offending, Mr Bergman was 19 years old and unemployed. His previous offending had been dealt with in the Youth Court. This related to a spate of mainly thefts and burglaries carried out over a fortnight in December 2014 when he was 16 years old.

[5] His pre-sentence report describes Mr Bergman as having a significant drug habit. He said his offending on 19 December was for the purpose of paying off a methamphetamine debt to gang members. Although presently unemployed and not receiving a benefit, he had worked at various times on fishing boats. The pre-sentence report recommended home detention. His mother’s address was assessed as suitable.

District Court sentencing

[6] Mr Bergman was to be sentenced on 13 March 2018. His counsel had only recently been instructed and there was a mix up about the sentencing date. Judge Davidson indicated a sentence of home detention, but for that to occur he had insufficient information about the mitigating features or Mr Bergman’s personal circumstances. He adjourned the…

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 Bergman v The Queen

Details

AGLC: Bergman v The Queen [2018] NZHC 2484
Case: [2018] NZHC 2484
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Bergman appealed against his sentence of two years and two months’ imprisonment for burglary and aggravated burglary. The appeal hinged on the availability of new psychological information which was not presented to the sentencing judge. The court was tasked with determining whether the new information justified a reduction in the sentence, potentially making home detention a viable alternative. The appeal was based on the premise that had the sentencing judge been aware of this additional information, the outcome of the sentencing would likely have been different.

The central legal issue before the court was whether the new psychological information, which included details about Bergman’s drug dependency, family background, and conduct disorder, warranted a reconsideration of the sentence. The court had to weigh the rehabilitative potential of Bergman, as highlighted by his engagement in prison programs and his motivation to change, against the severity of the crimes committed. The Crown argued that while the new information was significant, the existing drug and alcohol report provided to the sentencing judge already highlighted substantial issues, thus limiting the impact of the additional evidence. However, the court found that the new psychological information did indeed warrant a reduction in the sentence to allow for home detention.

The court accepted the new psychological information and concluded that it did require a reduction in Bergman's sentence. Given Bergman's youth, potential for rehabilitation, and his proactive engagement in prison programs, the court found that a more rehabilitative approach was warranted. The court granted the appeal, quashed the original sentence, and substituted a two-year imprisonment sentence. Bergman was granted leave to apply for home detention, provided arrangements for a drug rehabilitation program and a suitable home detention address were confirmed. The court envisioned that Bergman would seek home detention once these arrangements were in place, and after completing a drug rehabilitation program, he would serve the balance of his sentence electronically monitored at a suitable family member’s address.

Orders