Birch v Police - [2020] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000009

[2020] NZHC 878

BETWEEN
KEVIN BIRCH

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 30 April 2020

Appearances:

R A Peters for Appellant S L Dayal for Respondent

Judgment:

1 May 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 May 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…1 May 2020

Introduction

[1] On 17 January 2020 Kevin Birch was sentenced by Judge Kellar to two years and 10 months’ imprisonment on one charge each of burglary, shoplifting, possession of a knife, unlawfully takes motor vehicle, unlawfully gets into motor vehicle, unlawfully interferes with motor vehicle, reckless driving, failing to stop, and two charges of breach of bail.

BIRCH v NEW ZEALAND POLICE [2020] NZHC 878 [1 May 2020]

Facts

[2]On 10 October 2018 Mr Birch was released from prison.

Possession of a knife in a public place

[3] On 6 December 2018 police responded to an incident where a male wearing camouflage pants was presenting a knife at some campers. They stopped a car in Omamari, Northland in which Mr Birch was a passenger. Police observed him in a moderately intoxicated state and noticed he was wearing camouflage pants, so a search power was invoked. A small pocket knife was found in Mr Birch’s side trouser pocket.

First breach of parole

[4] On 7 December Mr Birch breached his release conditions by consuming alcohol.

Unlawfully gets into motor vehicle

[5] On 10 December Mr Birch got into a vehicle in Whangarei and drove away. It was found on 23 December in Dargaville.

Unlawfully interferes with motor vehicle

[6] On 24 December Mr Birch was found inside a vehicle in Dargaville tampering with the ignition.

Second breach of parole

[7] Between 19 December 2018 and 25 January 2019 Mr Birch breached his release conditions by failing to report to a probation officer.

Unlawfully takes motor vehicle, reckless driving and failing to stop

[8] Between 6.30 am and 5.30 pm on 12 February 2019, Mr Birch got into a vehicle in Orakei, Auckland and hotwired it, damaging the ignition barrel. He drove away, accompanied by two associates. At about 6.05 pm police located him driving around the Sylvia Park shopping centre. Police activated their blue and red lights and

siren but Mr Birch refused to stop and instead drove off at speed. He drove out of the Sylvia Park complex and onto the Mt Wellington Highway on the wrong side of the road, where he was recorded as driving at least 80 km/h. He then turned right onto Waipuna Road, driving through a red light. He turned right onto the South Eastern Highway by driving on the wrong side of the road and contravening the signed “no right turn” intersection. Police abandoned the pursuit due to safety concerns. Traffic at that time of the day was heavy along…

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 Birch v Police

Details

AGLC: Birch v Police [2020] NZHC 878
Case: [2020] NZHC 878
Decision Date: 1 May 2020

CaseChat Overview and Summary

In this case, Kevin Birch appealed against his sentence imposed by the District Court, which found him guilty of various charges including burglary, shoplifting, possession of a knife, and reckless driving. The appeal was heard by the High Court and the judgment was delivered by Dunningham J on 1 May 2020. The court was required to determine whether the District Court had erred in the imposition of the sentence.

The primary legal issue was whether the District Court had erred in its determination of the starting point for the burglary charge and the overall sentence imposed. The court also had to consider whether the District Court had appropriately taken into account the totality principle in reducing the sentence.

The High Court found that the starting point for the burglary charge was within range, as it had considered the degree of planning and sophistication, the nature of the premises entered, the kind and value of property stolen, damage done, and the extent of the offending. The court also found that the uplift for personal circumstances and the discount for totality were appropriate. The court held that the overall sentence of two years and 10 months' imprisonment for a wide array of offending, including a burglary and driving that put the public at risk, was not manifestly excessive.

The appeal was dismissed, and the end sentence of two years and 10 months' imprisonment was upheld. The court found that the District Court had not erred in the imposition of the sentence.

Orders