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Borthwick v Police

Borthwick v Police

Case [2014] NZHC 2772 7 November 2014

Appeal

Sentencing

Burglary

Breach of Community Detention

Aggravated & Exemplary Damages

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2014-483-15 [2014] NZHC 2772

BETWEEN
KEEGAN BORTHWICK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
29 October 2014

(Heard at Wellington by AVL)

Appearances:

S J Burlace for appellant
N A Refoy-Butler for respondent

Judgment:

7 November 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Keegan Borthwick, pleaded guilty to three charges of burglary, one count of receiving and one count of unlawful possession of ammunition. Mr Borthwick was sentenced by Judge Lynch in the District Court to two years and three months’ imprisonment.1

[2] Mr Borthwick now appeals against that sentence as being manifestly excessive, essentially on the basis that the starting point of three years’ imprisonment identified by the Judge was too high.

Mr Borthwick’s offending – the facts

[3] Mr Borthwick burgled three separate properties on 23 June, 26 June and

3 July 2014.

1 Police v Borthwick DC Wanganui CRI-2014-083-001038, 23 September 2014.

BORTHWICK v POLICE [2014] NZHC 2772 [7 November 2014]

[4] On 23 June 2014 between 9.00 am and 1.30 pm Mr Borthwick entered a residential property through an unlocked door and stole $2100 worth of property, including three digital cameras, a cell phone and $200 cash.

[5] On 26 June 2014 at 11.30 am Mr Borthwick knocked on the open back door of a second residential property. When he got no reply he entered the property and stole a laptop computer valued at $890 and a compact disk of unknown value. Contrary to Ms Burlace’s submission, the owner – an elderly woman – was in fact at home. She would not appear to have been aware of Mr Borthwick’s presence, nor he of hers.2 Mr Borthwick later sold the laptop online for $50.

[6] On 3 July 2014, Mr Borthwick entered a shed at the back of a third residential property and stole a Bosch angle grinder. He then removed an unlocked padlock from a second shed and took two boxes of ammunition from inside. That ammunition was subsequently found during a search of Mr Borthwick’s home, and formed the principal basis for the charge of unlawful possession.

[7] The final charge on which Mr Borthwick was convicted was receiving. He knowingly received a stolen battery drill from an associate (although he refused to pay for it) before also selling it on line.

[8] All of this offending was committed while Mr Borthwick was subject to a sentence of community detention.

Personal circumstances

[9] Mr Borthwick is 20 years of age.

[10] He was convicted of shoplifting (under $500) in 2014 and of being unlawfully in an enclosed yard or area in 2012. He has various other convictions for wilful damage, breach of community work, failing to answer District Court bail and
driving while disqualified.

2 The fact that the owner was present is revealed in her victim impact statement, as the Judge noted in his sentencing remarks.

[11] These are, however, Mr Borthwick’s first convictions for burglary and this is

his first sentence…

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 Borthwick v Police

Details

AGLC: Borthwick v Police [2014] NZHC 2772
Case: [2014] NZHC 2772
Decision Date: 7 November 2014

CaseChat Overview and Summary

In Borthwick v Police, the appellant, Keegan Borthwick, appealed against his sentence for multiple counts of burglary, receiving, and unlawful possession of ammunition, arguing that the sentence imposed by the District Court was manifestly excessive. The court was required to determine whether the starting point for the sentence was appropriately set and whether the overall sentence was excessive given the circumstances of the case.

The court examined the sentencing principles and considered the range of available starting points for the burglary offences. It noted that while the starting point for the first two burglaries was appropriate at 18 months, the uplift for the third burglary should have been lower, resulting in a total starting point of two years and three months, rather than three years. The court concluded that the starting point set by the sentencing judge was at the upper end of the range but not outside it, and thus, the sentence was not manifestly excessive. The court dismissed the appeal on the basis that the sentence was within the appropriate range.

The court also considered the argument that home detention would have been a more appropriate sentence. However, given the nature of the offences—burglaries of domestic premises—the court determined that imprisonment was more suitable. The court observed that even if home detention was available, it would not have been the appropriate sentence given the circumstances. The court noted that the sentence imposed would allow the appellant to be considered for parole after nine months, which the court viewed as a positive outcome for the appellant and the community.

Orders