Beri v Police - [2012] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2012-476-000008 [2012] NZHC 1923

ADRIAN CARL BERI
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 31 July 2012
(via Audio Visual Link)

Appearances: J B Lovely for the Appellant
A R McRae for the Respondent

Judgment: 31 July 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH Re Appeal Against Sentence

Introduction

[1] Mr Beri was convicted and sentenced to 13 months imprisonment in respect of the following charges:

(i) Unlawful possession of a firearm. (ii) Two breaches of community work. (iii) Two charges of receiving.

[2] He now appeals his sentence.

BERI V NEW ZEALAND POLICE HC TIM CRI-2012-476-000008 [31 July 2012]

Factual Background

[3] In February 2011, Mr Beri was found in unlawful possession of a firearm, having been seen by neighbours wandering around his property with a loaded bolt action rifle.

[4] Police were called. The house was searched and ammunition found. Mr Beri’s motor vehicle was also searched. Police discovered two laptops and some jewellery, all of which was identified as having been stolen in recent burglaries.

[5] As a result of those discoveries, Mr Beri was charged with being in unlawful possession of a firearm and with receiving.

[6] Mr Beri pleaded guilty to the firearms charge and was sentenced to 175 hours community work.

[7] Two days after his induction into the community work sentence, he failed to report. As a result, he was breached and another 40 hours community work was added in July 2011.

[8] The record notes that the sentencing Judge gave Mr Beri a final warning.

[9] However, there was further non-compliance resulting in a formal warning letter from Probation on 22 July 2011.

[10] As at 19 October 2011, Mr Beri had only completed 17 hours of the community work sentence.

[11] This was a breach of s 58 of the Sentencing Act 2002, prompting the department to apply for a review of the sentence. That meant Mr Beri was subject not only to a charge of breaching the community work sentence but also subject to a review of the sentences that had been imposed in May and July 2011 on the firearms charge and the first breach of community work.

[12] Then in February 2012, Mr Beri committed another receiving offence. This time receiving a motorbike, knowing it was stolen. While the bike was in his possession, it was painted black.

[13] On 13 April 2012, he pleaded guilty to this motorbike receiving and the earlier 2011 receiving of the laptops and the jewellery. He was then remanded for sentencing.

The District Court sentencing

[14] The information before the sentencing Judge included a pre-sentence report. It told the Judge that Mr Beri is 29 years of age with a reasonably significant criminal history, appearing on a variety of charges since 1999. There was a previous conviction for breach of community work in 2008.

[15] In the opinion of the report writer, the factors contributing to his offending were identified as relationships,…

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 Beri v Police

Details

AGLC: Beri v Police [2012] NZHC 1923
Case: [2012] NZHC 1923
Decision Date: 31 July 2012

CaseChat Overview and Summary

Adrian Carl Beri appealed against his sentence of 13 months imprisonment, which he was given for unlawful possession of a firearm, two breaches of community work, and two charges of receiving. The appeal was heard by the High Court of New Zealand, with the judge being Hon. Justice French. The appeal hinged on whether the District Court judge had erred in not imposing home detention or community detention, or a mixture of either with intensive supervision.

The grounds of appeal were that the judge failed to take into account that the uncertainty over the availability of home detention had been resolved, that the judge erred in finding Mr Beri was a “current” drug user and therefore unsuitable for an electronically monitored sentence, that the judge erred in taking into account Mr Beri's employment as a self-employed internet server and software engineer as a reason against home detention, that the judge failed to take into account Mr Beri's childcare responsibilities, that the judge was wrong to rely on general problems of non-compliance with community work sentences, and that the judge failed to take into account the early guilty plea, the low level nature of the offending, and the fact that Mr Beri had never been to prison before.

However, the court found that the judge's decision was one that was open to him. The court found that the judge was entitled to take into account the fact that Mr Beri would be working from home anyway, which would reduce the deterrent effect of home detention. The court also found that the judge was entitled to take into account the need to preserve the integrity of the community work sentence and that Mr Beri was not minded to address his offending related factors and had low motivation to participate in rehabilitative programmes.

The court concluded that there was no basis on which it would be proper for the court to interfere with the judge's decision. Accordingly, the appeal was dismissed and the sentence confirmed.

Orders