Blissett v Police - [2013] NZHC 156

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000374 [2013] NZHC 156

JOSHUA ALLEN BLISSETT
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 February 2013

Counsel: A J Holland for the Appellant
J M Pridgeon for the Respondent

Judgment: 11 February 2013

JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on 11 February 2013 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Ministry of Justice (Public Defence Service) P O Box 90243 (DX CX 10075) Victoria Street West Auckland 1142 for the Appellant
Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent

BLISSETT v POLICE HC AK CRI-2012-404-000374 [11 February 2013]

[1] The appellant, Joshua Allen Blissett, appeals against a total sentence of three years, three months’ imprisonment imposed in the District Court following his conviction on charges of burglary, receiving and possession of a glass pipe for the purpose of consuming methamphetamine. There was also a charge of breaching a standard prison release condition for which he was convicted and discharged. Mr Blissett contends that the total sentence of imprisonment that he received is manifestly excessive. The appeal is opposed.

Facts

[2] Mr Blissett entered guilty pleas to the offences on 17 July 2012. He was sentenced on 12 October 2012.

Burglary offending

[3] On the afternoon of 12 January 2012, Mr Blissett entered the outside area of a domestic dwelling and attempted to force open a window. The window broke; he was cut by the broken glass; and left the scene. Some of his blood had dropped onto the property, leaving DNA evidence that enabled the Police to identify his presence at the scene.

[4] Then on 27 January 2012, during the daytime, Mr Blissett and an unknown associate broke into a domestic residence and took personal property, including a camera and items of jewellery, with a total worth of $2,000.

Receiving offending

[5] On 1 February 2012, Mr Blissett’s residence was searched by Police and he was found to be in possession of personal items valued at $1,100 that were taken by a burglary on 1 January 2012 and personal items valued at $300 that were taken by a burglary on 18 January 2012. These burglaries were of domestic dwellings.

Misuse of Drugs Act 1975 offending

[6] On 21 February 2012, the Police again searched Mr Blissett’s address. They found a glass pipe on his person, which he admitted using for the purpose of smoking methamphetamine.

Breach of release conditions

[7] At the time of the offending, Mr Blissett had recently been released from prison. His release conditions included a curfew condition, which he breached on
10 January 2012.

Mr Blissett’s circumstances

[8] Mr Blissett is 22 years old. He has an extensive criminal history. He has committed 68 offences, including youth offending. This includes 13 convictions for burglary as an adult offender and seven such convictions in the Youth Court. On
21 April…

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.

Keep reading for free

Create a free CaseChat account to read Blissett v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 156
Decision Date: 11 February 2013

CaseChat Overview and Summary

Joshua Allen Blissett appeals against a sentence of three years, three months’ imprisonment imposed by the District Court following his conviction on charges of burglary, receiving, possession of a drug utensil, and breaching a prison release condition. The appeal was opposed. Mr Blissett's appeal is based on the grounds that the sentence imposed was manifestly excessive, the Judge erred in imposing a cumulative sentence, and the Judge erred in law by considering the breach of parole to be an aggravating factor. The appeal was heard by Justice Duffy, who found that the starting point of 17 months’ imprisonment was appropriate, taking into account the circumstances of the offending. An uplift of three months was added for the attempted burglary and an uplift of 12 months was added for previous burglary convictions. An uplift of 11 months was added for the receiving charges and one month for the drug utensil offence. A discount of 30 per cent was applied for remorse and age. The final sentence was two years and seven months’ imprisonment. The Judge's reliance on a Senior approach must have led him to some double counting, despite his comments in the sentencing notes suggesting the contrary. The Judge's decision to sentence on the receiving charges cumulatively must have included a failure to pay due regard to the totality principle. A sentence that falls outside the range of appropriate sentences is one that is also manifestly excessive. The appeal was allowed, and the sentence imposed in the District Court was quashed and replaced with a total end sentence of two years and seven months’ imprisonment.

Orders