Biskowiak v Police - [2015] NZHC 486

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-2 [2015] NZHC 486

BETWEEN
PAUL ANTHONY BISKOWIAK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 March 2015

Appearances:

P Knowsley for appellant
S W Woods for respondent

Judgment:

17 March 2015

JUDGMENT OF CLIFFORD J

[1] The appellant, Paul Biskowiak, pleaded guilty to one count of unlawfully taking a motor vehicle,1 two counts of theft,2 and one count of driving while disqualified.3 On 12 August 2014 Judge Grace gave a sentencing indication to Mr Biskowiak.4 The District Court record of hearing shows that indication was accepted on 19 August 2014. Mr Biskowiak was finally sentenced by Judge Grace
in the District Court on 12 December 2014 to one year and ten months’

imprisonment.5

[2] Mr Biskowiak now appeals the sentence on the grounds that the Judge indicated a sentence of home detention and was bound to follow that indication at sentencing.

[3] Mr Biskowiak did not file his appeal until 23 January 2015, and was therefore out of time. That delay is not long and is explained by difficulties the

1      Crimes Act 1961, s 226(1).
2      Crimes Act 1961, s 219.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4).
4      Police v Biskowiak DC Lower Hutt CRI-2014-096-001699, 12 August 2014.
5      Police v Biskowiak DC Hutt Valley CRI-2014-096-001699, 12 December 2014.

BISKOWIAK v POLICE [2015] NZHC 486 [17 March 2015]

holiday period created for Mr Knowsley when communicating with Mr Biskowiak. Leave is granted accordingly.

Facts

[4] Mr Biskowiak was disqualified from driving for six months on 11 December

2013.

[5] In the early hours of the morning of Saturday 7 June 2014, he drove a stolen vehicle, a ute, to a house. There he jacked up a car that was in the driveway, removed the car’s four wheels and drove off with them in the ute. The wheels were valued at approximately $2,500. They were recovered when Mr Biskowiak was stopped by the police a short while later. It transpired that Mr Biskowiak had also stolen a laptop, sunglasses and tools, together valued at $3,620, from the ute.

[6] In his sentencing indication, the Judge noted the facts of Mr Biskowiak’s offending, that he had an unenviable record of dishonesty, a lot of it relating to motor vehicles, and that he had only just been released from a term of imprisonment before the offending in question had occurred. Having indicated that the starting point
sentence would be two and half years’ imprisonment, the Judge went on to say:6

[6] If he were to plead guilty he would be entitled to a 25 percent reduction for a plea of guilty and one would have to take into account the period of time that he has spent on remand. That would bring him within the less than the two year period, which, from a statutory point of view, brings him into the realms of home detention. He could not expect anything less than home detention, but whether or not…

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 Biskowiak v Police

Details

AGLC: Biskowiak v Police [2015] NZHC 486
Case: [2015] NZHC 486
Decision Date: 17 March 2015

CaseChat Overview and Summary

In Biskowiak v Police, Paul Biskowiak appeals his sentence of 22 months’ imprisonment, imposed after he pleaded guilty to several charges including unlawful taking of a motor vehicle, theft and driving while disqualified. Biskowiak contends that the District Court Judge was bound to follow a sentencing indication she had made, which suggested home detention could be imposed if certain conditions were satisfied. The appeal was filed out of time and the Court grants leave for the appeal on the basis that the delay was not substantial and was caused by holiday period difficulties. The District Court Judge had indicated that a sentence of home detention could be imposed if a pre-sentence report recommended it and the address was suitable. A series of reports were prepared and the final report recommended home detention with reservations. The District Court Judge decided to impose a custodial sentence because of Biskowiak’s extensive criminal history. The High Court finds that the District Court Judge’s indication was sufficiently clear to create an expectation that home detention could be imposed and that expectation was not met. The Court quashes the convictions and remits the matter to the District Court for Biskowiak to re-plead.

Orders