Black v Police - [2015] NZHC 2182

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-000226 [2015] NZHC 2182

BETWEEN
JESSE ROBERT BLACK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 September 2015

Counsel:

K Scott for Appellant
Z Hamill for Respondent

Judgment:

10 September 2015

JUDGMENT OF ANDREWS J

This judgment was delivered by me on 10 September 2015 at 3.15pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Manukau
Crown Solicitor, Manukau

BLACK v NEW ZEALAND POLICE [2015] NZHC 2182 [10 September 2015]

Introduction

[1] The appellant, Mr Black, appeared before Judge B A Gibson in the Manukau District Court on 21 July 2015, for sentencing on one charge each of burglary, unlawful possession of a firearm, unlawful possession of explosives, possession of utensils for using methamphetamine, possession of methamphetamine and possession of cannabis. He has appealed against his sentence of three years and nine
months’ imprisonment.1

Background

[2] At around 10.15am on 17 March 2015, Mr Black jemmied a door to break into the victim’s home. Once inside, he broke a lock on a gun cupboard containing firearms and ammunition. He stole two rifles and three shotguns, together with ammunition. The value of the stolen items was estimated to be in excess of $3,750.

[3] Mr Black was identified by a fingerprint on the door-frame of the gun cupboard. The Police conducted a search of a caravan at a golf club, where Mr Black was living, and found a snap-lock bag containing between 0.1g and 0.25g of methamphetamine, a package of about 0.5g of cannabis, a glass methamphetamine pipe, and some used methamphetamine syringes. The Police also found one of the stolen rifles in a locked implement shed a few metres away from the caravan.

[4] Mr Black first appeared in the District Court on 27 March 2015, and entered guilty pleas to all charges on 21 April 2015.

Summary of facts

[5] Before outlining the Judge’s sentencing decision, it is necessary to refer to the

Police summary of facts.

[6] Before Mr Black entered the guilty pleas on 21 April 2015, he accepted a

summary of facts by writing on it “I agree with this amended summary”. That

1 Police v Black [2015] NZDC 14029.

summary was in similar terms to the background summary set out above. I will refer

to it as “version one”.

[7] However, it is apparent that Judge Gibson was presented with a different, expanded summary of facts, and Mr Black was sentenced on the basis of that version, which will be referred to as “version two”. It appears that version two was prepared by the Police after Mr Black had made a statement to the Police on 30 April
2015.

[8] In his statement, Mr Black sets out his relationship with Mr Trent Matson. Mr Black said that he met Mr Matson after he went to live at the golf club. He had moved there as part of an attempt to get himself off drugs. He said Mr…

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 Black v Police

Details

AGLC: Black v Police [2015] NZHC 2182
Case: [2015] NZHC 2182
Decision Date: 10 September 2015

CaseChat Overview and Summary

Jesse Robert Black appealed against his sentence of three years and nine months’ imprisonment imposed by the Manukau District Court on charges of burglary, unlawful possession of a firearm, unlawful possession of explosives, possession of utensils for using methamphetamine, possession of methamphetamine, and possession of cannabis. The High Court found that the starting point of five years was too high, and that this led to an error in Mr Black’s sentencing. The appropriate starting point on the charge of burglary in this case was two years and three months’ imprisonment. The High Court allowed the appeal, quashed the sentence of three years and nine months’ imprisonment and imposed a sentence of one year and 10 months’ imprisonment in its place.

The court noted that the sentencing Judge adopted a starting point of five years' imprisonment, referring to comments in a similar case, Shierney v Police. The High Court was not persuaded that the Judge had “misapplied” Shierney v Police, however, it accepted that the starting point of five years was too high, and that this led to an error in Mr Black’s sentencing. The High Court considered the appropriate starting point on the charge of burglary in this case was two years and three months’ imprisonment. The court also found that a discount of 29 months' imprisonment was appropriate for Mr Black's assistance to the Police, his remorse and his efforts to tackle his drug problem, leading to an end sentence of one year and 10 months’ imprisonment. The High Court was satisfied that such a sentence was appropriate for Mr Black’s offending, and his personal circumstances.

Orders