Blance v Police - [2015] NZHC 2566

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-30

CRI-2015-441-31 [2015] NZHC 2566

BETWEEN
JACK LYALL BLANCE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 October 2015

Appearances:

LPF Lafferty for the Appellant
MJM Mitchell for the Respondent

Judgment:

20 October 2015

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 20 October 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
LPF Lafferty, Barrister, Napier

Solicitors:
MJM Mitchell, Crown Solicitors, Napier

BLANCE v NEW ZEALAND POLICE [2015] NZHC 2566 [20 October 2015]

Introduction

[1] Mr Blance pleaded guilty to and was convicted of one charge of burglary and one charge of breach of a protection order. He was sentenced to nine months and four months imprisonment respectively. The two sentences were cumulative. He appeals both sentences but focuses his grounds and submissions exclusively on the burglary charge on the basis that it is manifestly excessive and there is a gross disparity with a co-defendant, Ms Pascoe, who was sentenced approximately six weeks earlier. I do not therefore further comment on the breach of the protection order other than in the respect identified at the conclusion of this judgment.

[2] Ms Mitchell does suggest that were I to find the sentence in relation to the burglary manifestly excessive but considered that the sentence in relation to the breach of protection order generous then I might look at the totality of the sentence and consider maintaining it in relation to the burglary offence. I am uncomfortable approaching the appeal on that basis in light of the focus in the appellant’s submissions and the unrelated nature of the offending.

Facts

[3] In relation to the burglary charge the factual background is that on 23 January Mr Blance and two co-defendants, who are half-sisters, Ms Pascoe and a Ms Biles, arrived at a secluded address in Te Pohui which is in the Hastings District. That is the address of the victim. The victim was the partner of the mother of the two co- defendants Ms Pascoe and Ms Biles. Mr Blance and his associates jumped over a locked gate and they walked down the approximately 500 metre driveway to the back of the property where they found three garages. Mr Blance smashed a small window of one of the garages using a hammer. He entered the garage and took approximately 10 litres of diesel for which reparation of $65 has already been paid. Mr Blance and his associates carried the containers back to their car and emptied the contents into the vehicle, seemingly with the usual results of introducing diesel fuel into a petrol driven vehicle. When spoken to by the police Mr Blance stated that he was told by his associates that he was allowed to take the fuel.

Previous criminal history

[4] Mr Blance is 32 years old. His conviction history sadly spans the majority of his adult life. His most serious conviction is for manslaughter for which he…

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.

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Details

Case: [2015] NZHC 2566
Decision Date: 20 October 2015

CaseChat Overview and Summary

The High Court of New Zealand was asked to review the sentencing of Jack Lyall Blance, who had been convicted of burglary and breach of a protection order. Blance's primary contention on appeal was that the sentence for the burglary charge was excessively harsh and disproportionate when compared to the sentence of a co-defendant, Ms Pascoe, who had been sentenced for similar offences approximately six weeks prior. The court was tasked with determining whether there was a valid error in the sentencing process that warranted an appeal under section 250(2) of the Criminal Procedure Act 2011. This required the court to examine whether the sentence was manifestly excessive and if there was an unjustifiable disparity between the sentences of co-defendants.

Blance, a 32-year-old with a history of minor theft and disorderly conduct, pleaded guilty to breaking into a garage on a secluded property, stealing approximately 10 litres of diesel, and taking it despite knowing it was the wrong type of fuel for his vehicle. The District Court judge sentenced Blance to nine months' imprisonment for the burglary and four months for breaching a protection order, with the sentences to be served cumulatively. Blance argued that the burglary sentence was manifestly excessive given the nature of the offence and the disparity with Ms Pascoe's sentence of 80 hours of community work and nine months' supervision. The Crown countered that the sentence was appropriate given Blance's criminal history and the similarity of the case to a precedent case, R v Columbus.

The court found that the District Court judge erred in setting the starting point for the burglary sentence. Blance was considered a first-time burglar with no premeditation involved in the offence, and the value of the stolen goods was low. The court found that the nine-month sentence was manifestly excessive and did not adequately consider the principles of keeping offenders in the community and the desirability of parity between co-defendants. The disparity between Blance's sentence and Ms Pascoe's suggested a miscarriage of justice. However, Blance's culpability was considered greater than Ms Pascoe's, as he was the one who forced entry into the garage. The court allowed the appeal and substituted the sentences for both the burglary and the breach of the protection order with 120 hours of community work and nine months' supervision, to be served concurrently.

Orders