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Bimler v Police

Bimler v Police

Case [2023] NZHC 2661 22 September 2023

Sentencing

Breach of Community Work

Mens Rea & Intention

Personal Mitigating Factors

Admissibility of Evidence

Reparation

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-137

[2023] NZHC 2661

BETWEEN
CAINE DAMON BIMLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 September 2023

Appearances:

A J Greaves for Appellant C E Martyn for Respondent

Judgment:

22 September 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 22 September 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

BIMLER v POLICE [2023] NZHC 2661 [22 September 2023]

[1] Caine Bimler was sentenced to a term of 29 months’ imprisonment by Judge Couch in the Christchurch District Court on 22 charges of predominantly dishonesty- related offending. He appeals that sentence, alleging it was manifestly excessive.

[2] The notice of appeal was filed approximately one week late. That was due to counsel’s miscalculation of the period within which the appeal should have been lodged. However, the respondent has not been prejudiced and an extension to file the appeal out of time is granted.

Background

[3] Mr Bimler was for sentence on eight charges of theft (under $500),1 two charges of theft (between $500 to $1,000),2 and six charges of theft (over $1,000).3 He was also for sentence on two charges of receiving (over $1,000),4 escaping from custody,5 possession of utensils,6 breach of community work,7 and failing to stop.8

Thefts

[4] This offending occurred over a period of some 14 months, between 22 January 2022 and 11 March 2023. The theft largely involved Mr Bimler entering commercial retail premises and taking items ranging in value from $8 to $3,000. Some of the charges concerned the theft of food or involved stealing fuel, while others involved the theft of expensive electrical appliances and equipment. Mr Bimler appears to have been primarily motivated by his need to support addictions to both methamphetamine and gambling.

1      Crimes Act 1961, ss 219 and 223(d) — maximum penalty of three months’ imprisonment.
2      Section ss 219 and 223(c) — maximum penalty of one year’s imprisonment.
3      Section 219 & 223(b) — maximum penalty of seven years’ imprisonment.
4      Sections 246 and 247(a) — maximum penalty of seven years’ imprisonment.
5      Section 120 — maximum penalty of five years’ imprisonment.
6      Misuse of Drugs Act 1975, s 13(1)(a) and (3) — maximum penalty of one year’s imprisonment or fine not exceeding $500.
7      Sentencing Act 2002, s 71(1)(a) — maximum penalty of three months’ imprisonment.
8      Land Transport Act 1998, s 35(1)(c) — maximum penalty of three months’ imprisonment or fine not exceeding $4,500.

Receiving

[5] The two receiving charges occurred in September and October last year. They involved Mr Bimler selling $17,000 worth of kitchen appliances and power tools to various pawn shops around Christchurch, and the selling of a hedge trimmer worth some $1,600 that had been stolen from a tennis club.

Failing to stop

[6] The failing to stop charge occurred on the morning of 3 October 2022. Mr Bimler was the driver…

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 Bimler v Police

Details

AGLC: Bimler v Police [2023] NZHC 2661
Case: [2023] NZHC 2661
Decision Date: 22 September 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Caine Damon Bimler appeals his 29-month imprisonment sentence for various charges, including theft, receiving stolen property, escaping from custody, possession of utensils, breach of community work, and failing to stop and ascertain whether injury had occurred. The appeal contends the sentence was manifestly excessive, with the starting point for sentencing being too high, the uplift for prior convictions being excessive, and the credit for personal mitigating factors being insufficient. The Court reassessed the starting point for the charges, finding a starting point of 20 months for the receiving charges and 18 months for the other theft charges. For escaping from custody, the Court determined a six-month uplift was appropriate. The Court found the two-month uplift for prior convictions and the 15 per cent discount for personal mitigating factors were justified. The Court concluded a sentence of 23 months' imprisonment was appropriate, finding the original sentence manifestly excessive. The appeal is allowed, the sentence is set aside, and a sentence of 23 months' imprisonment is imposed. The reparation order and suspension of the community work sentence remain in place. Bimler is granted leave to apply for home detention should a place become available at the St Marks Residential Rehabilitation Facility.

Orders