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Blackbourn v Police

Blackbourn v Police

Case [2023] NZHC 3271 17 November 2023

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2023-416-014

[2023] NZHC 3271

BETWEEN
ROWAN BLACKBOURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2023

Appearances:

D A Berry for Appellant

M J M Mitchell for Respondent

Judgment:

17 November 2023

JUDGMENT OF LA HOOD J

(appeal against sentence)

An appeal against the length of a term of imprisonment for burglary

[1] Rowan Blackbourn appeals against a sentence of two years’ imprisonment imposed by Judge K J Phillips at Gisborne District Court on 4 October 2023 on one charge of burglary.1 He submits that the sentence was manifestly excessive due to errors in the starting point adopted and the uplift and reductions for aggravating and mitigating factors.

[2] The burglary involved Mr Blackbourn, on multiple occasions, watching the house where two young women lived, then entering the empty house early one morning through a louvre window and searching through drawers containing the women’s clothes (including underwear). He has a number of previous convictions for

1 Police v Blackbourn [2023] NZDC 21867.

BLACKBOURN v NEW ZEALAND POLICE [2023] NZHC 3271 [17 November 2023]

similar sexually motivated offending, including burglaries and making intimate visual recordings.

[3] I conclude below that the end sentence was not manifestly excessive. I do not consider the starting point was too high given the level of premeditation involved, the sexually motivated targeting of the victims and the impact the offending has had on them. I consider the uplift for previous convictions was well within range and, although the credit for personal mitigating factors could have been greater, the end sentence was within the available range.

The circumstances of the offending

[4] I gratefully adopt the following summary of the offending from Judge Phillips sentencing notes:

[2] I understand that, on the summary of facts in this matter, you were aware of a property at [the victims’ address] near Gisborne. The victims of your offending live together there in this house. The house which bounders a disused racecourse cannot be seen from the road. However, you, in the months of October and November 2022, on multiple occasions during that period of time, went and parked opposite the property. You had the property and its occupants under close scrutiny during that period. You were watching the occupants’ movements over that period of time regularly and if you considered there was any question of you being seen yourself you tried to conceal yourself.

[3] On 10 April 2023 the occupant who was at the house on that day left at 4.45am to go to the gym which she normally does to work out. The other two flatmates were not present at the house and had not been there overnight. You had parked down the road, and walked to the boundary fence, climbed over it and went to the laundry window at the rear of the house. You proceeded to remove the five glass panes from the laundry window, and you climbed…

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 Blackbourn v Police

Details

AGLC: Blackbourn v Police [2023] NZHC 3271
Case: [2023] NZHC 3271
Decision Date: 17 November 2023

CaseChat Overview and Summary

In this case, Rowan Blackbourn appeals against a two-year imprisonment sentence imposed for burglary by Judge K J Phillips at the Gisborne District Court. Blackbourn argues that the sentence was manifestly excessive due to alleged errors in the starting point, uplift, and reductions for aggravating and mitigating factors. The burglary involved Blackbourn entering a house where two young women lived, searching through their drawers containing their clothes, including underwear, after watching the house for multiple occasions. Blackbourn has previous convictions for similar sexually motivated offending, including burglaries and making intimate visual recordings. The court found that the starting point was not too high given the level of premeditation, the sexually motivated targeting of the victims, and the impact the offending had on them. The uplift for previous convictions was within range, and although the credit for personal mitigating factors could have been greater, the end sentence was within the available range.

The court considered the arguments made by both parties. Blackbourn's counsel argued that the starting point was too high, the uplift for previous convictions was disproportionate, and the credit for personal mitigating factors was inadequate. The respondent argued that the starting point was appropriate, and the reductions for the guilty plea and personal mitigating factors were reasonable. The court concluded that there was no error in the sentence, and the end sentence was within the available range. The court also noted the importance of considering the impact of imprisonment on Blackbourn's young child and encouraged him to undertake psychological treatment to address the sexual motivation for his offending.

Orders