Brown v Police - [2014] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-1

CRI-2014-442-2 [2014] NZHC 68

BETWEEN ANDREW STEWART BROWN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2014

Counsel: R W Ord for Appellant
E J Riddell and A L Mills for Respondent

Judgment: 5 February 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 5 February 2014 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Nelson

BROWN v NEW ZEALAND POLICE [2014] NZHC 68 [5 February 2014]

Introduction

[1] Mr Brown appeals against a sentence of 14 months’ imprisonment imposed in the District Court at Nelson by Judge Zohrab,1 on the ground the sentence imposed is manifestly excessive because:

(a) the Judge should have adopted a lower starting point; and

(b)Mr Brown should be entitled to a full discount of 25% for an early guilty plea, rather than a discount of 20% as allowed by Judge Zohrab.

Circumstances of the offending

[2] On 6 January 2014 Mr Brown pleaded guilty and was convicted of burglary, unlawful possession of a firearm and two charges of receiving property. On
21 March Mr Brown had received a Tikka .308 rifle and .308 ammunition in exchange for $1500. The rifle and ammunition were stolen in an earlier burglary and, according to the Crown, have an approximate value of $2000. Mr Brown did not hold a firearms licence for the rifle. On 22 December 2013 Mr Brown unlawfully entered a caravan and stole a radio, a camping gas cylinder and several grocery items. The offending was described by the sentencing Judge as opportunistic.

Previous history

[3] Mr Brown has a number of previous dishonesty and other convictions, including 10 previous convictions for burglary. Of relevance are the following.

[4] In 1998 he was convicted on two counts of burglary ($500-$5000 and under

$500 respectively) and sentenced to three months’ imprisonment. I note that, at this time, he was also convicted and sentenced to a cumulative term of imprisonment on three charges of attempted arson and one charge of wilfully setting fire to property so
as to endanger life.

1 New Zealand Police v Brown DC Nelson CRI-2013-042-002888, 14 January 2014.

[5] In 2000, Mr Brown was convicted on two counts of burglary (under $500), five counts of burglary ($500-$5000), two counts of theft of property (under $500), three counts of theft of property ($500-$5000), two counts of taking a document for pecuniary advantage and three counts of obtaining accommodation through credit by fraud. He was sentenced concurrently to a total of two years’ imprisonment.

[6] In 2009 Mr Brown was again convicted of burglary and sentenced to six months’ imprisonment. The time period between 2000 and 2009 represents a significant gap in this type of offending and the lapse, in terms of the present offending, appears to have occurred at a time when he was without work.

District Court decision

[7] The Judge took into account the gap in time since Mr Brown’s…

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 [2014] NZHC 68
Case: [2014] NZHC 68
Decision Date: 5 February 2014

CaseChat Overview and Summary

The appeal by Andrew Stewart Brown against a sentence of 14 months' imprisonment imposed by the Nelson District Court was heard on 4 February 2014, with judgment delivered on 5 February 2014. Mr Brown appealed on the grounds that the sentence was manifestly excessive due to the District Court judge's choice of starting point and the discount applied for an early guilty plea. Mr Brown was convicted of burglary, unlawful possession of a firearm, and receiving stolen property. The firearm in question was a Tikka .308 rifle and.308 ammunition, stolen in an earlier burglary, received in exchange for $1500. The rifle and ammunition were valued at approximately $2000. Mr Brown had a history of burglary convictions, including 10 prior convictions. The District Court judge considered the gap in time since Mr Brown's last burglary conviction and adopted a starting point of 18 months, referencing the case of Arahanga v R. After accounting for Mr Brown's guilty plea, the judge imposed a sentence of 14 months' imprisonment. Mr Brown's counsel argued that the starting point should be considerably less than one year due to the lesser severity of the current offence compared to previous cases, and that a 25% discount for the guilty plea should have been applied. The Crown submitted that the starting point was appropriate and the judge's decision not to apply an uplift for prior convictions was correct, given Mr Brown's efforts to turn his life around.

The High Court found that the District Court judge was correct in treating the caravan as a residential home and the starting point was within the appropriate range. The court further determined that the discount for the guilty plea did not result in a manifestly excessive sentence. The court agreed with the District Court's decision not to apply an uplift for Mr Brown's prior history, as he had made a significant effort to change his life and had only relapsed twice in the past 14 years. Consequently, the appeal was dismissed, and the sentence upheld.

Orders