Birch v Police

Case [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…

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Birch v Police [2020] NZHC 878
Case
[2020] NZHC 878
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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