Brown v Police - [2017] NZHC 632

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-061 [2017] NZHC 632

BETWEEN
MARK BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 April 2017

Appearances:

P Tomlinson for Appellant
T Clark for Respondent

Judgment:

4 April 2017

ORAL JUDGMENT OF TOOGOOD J

Brown v NZ Police [2017] NZHC 632 [4 April 2017]

Introduction

[1] On 6 March 2017, Mark Brown pleaded guilty to, and was sentenced by

Judge G A Fraser on:

(a) One charge of burglary,1 committed on or about 8 October 2016, for which the end sentence was three years' imprisonment;

(b) One charge of male assaults female,2 committed on or about

22 March 2016 for which the end sentence was 3 months’

imprisonment; and

(c) One charge of breach of bail,3 committed on or about 2 May 2016 for

which the end sentence was 1 month’s imprisonment.

The sentences are to be served concurrently.

[2] Mr Brown now appeals on the grounds that the total effective sentence was manifestly excessive.

Factual background

Burglary

[3] At around 7.30am on Saturday 8 October 2016, the burglary victim locked and secured her home address on Yarborough Street, St Mary’s Bay. She gave no one, and certainly not Mr Brown, permission to enter the house. Sometime between
7.30am on Saturday 8 October and 3.40pm on Monday 10 October 2016, Mr Brown entered the address by climbing onto the second storey of the dwelling and gained entry through the main bedroom. He jemmied open the window using a tool of some
unknown description and, once inside, ransacked the house. He stole a large

1      Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment.
2      Crimes Act, s 194(b); maximum penalty 2 years’ imprisonment.
3      Bail Act 2000, s 38(a); maximum penalty 1 year imprisonment, or $2000.00 fine.

quantity of personal belongings valued in total at $7,358.98. This property has never been recovered. The damage to the dwelling and fittings cost $7,710.00 to repair.

[4] Mr Brown accepts that this was a domestic burglary which occurred at night. Nobody was present at the time. The victim impact statement indicates that the gross intrusion into her home has had a serious psychological impact on the victim. The violation of her privacy, aggravated by the strewing of her underwear throughout the house, has left her feeling unsafe and anxious in her own home.

Male assaults female

[5] Mr Brown had been in a domestic relationship with the assault complainant for around six months. When an argument occurred between them in March 2016, he punched her in the right cheek with a closed fist and then grabbed her by the shoulders, shaking her violently. Subsequently, Mr Brown tried to pull the complainant from a vehicle, as the police arrived. Mr Brown was on bail for this offence when he committed the burglary in October 2016.

Breach of bail

[6] On 2 May 2016, Mr Brown, having been released on bail, failed without reasonable excuse to attend the Court as specified in the bail…

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 Brown v Police

Details

AGLC: Brown v Police [2017] NZHC 632
Case: [2017] NZHC 632
Decision Date: 4 April 2017

CaseChat Overview and Summary

Mark Brown appealed against his conviction and sentence on the grounds that the total effective sentence was manifestly excessive. Mr Brown was sentenced to three years' imprisonment for burglary, three months' imprisonment for male assaults female, and one month's imprisonment for breach of bail. The sentences are to be served concurrently. Mr Brown argued that the starting point was too high and the uplift for previous convictions was too high. The court considered the nature of the burglary, the aggravating factors, and Mr Brown's extensive criminal history. The court concluded that the starting point of two years and six months' imprisonment was not manifestly excessive and that the 18-month uplift for previous convictions was justifiable. The court dismissed the appeal and upheld the sentence imposed by the District Court.

The final orders of the court were to dismiss the appeal and uphold the sentence imposed by the District Court. The three-year sentence for burglary, three-month sentence for male assaults female, and one-month sentence for breach of bail, to be served concurrently, remained in place.

Orders