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Bryan v Police

Bryan v Police

Case [2021] NZHC 1147 21 May 2021

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000013

[2021] NZHC 1147

BETWEEN
KRUZ THORNE WILLIAM BRYAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 May 2021

Appearances:

S A Saunderson-Warner for the Appellant C J Bernhardt for the Respondent

Judgment:

21 May 2021

JUDGMENT OF NATION J

Introduction

[1] The appellant, Kruz Bryan, was convicted on one charge of burglary and sentenced to one years’ imprisonment.1 Mr Bryan appeals that sentence.

Background

[2] At about 8.40 pm on 29 December 2020, Mr Bryan and his co-offender went onto a residential property in Alexandra. They went to a garage that was located behind the house. The co-offender got into a vehicle that was parked in the garage and commenced searching it. As Mr Bryan left the property he was observed by the victim walking from the garage past the house. The victim went outside and confronted the co-offender, who was still in the vehicle.

1 Police v Bryan [2021] NZDC 5192.

BRYAN v POLICE [2021] NZHC 1147 [21 May 2021]

[3] The co-offender was aggressive towards the victim before leaving the address. He has entered pleas of not guilty and is awaiting trial.

[4]No items were taken during the burglary.

District Court decision

[5] Judge Turner referred to the Court of Appeal judgment of Arahanga v R in determining the starting point for the offending.2 He noted that, in Arahanga, the Court of Appeal said starting points for what he said they described as “straight forward burglaries of residential properties” fell within the 18 to 30 months’ imprisonment bracket.3 His Honour considered the key aggravating factors to be the residential nature of the premises and that the offending occurred in the evening which increased the risk of confrontation with the occupants. The Judge accepted the burglary appeared to be unplanned, no damage occurred to the property and nothing was taken. He accepted Mr Bryan took a lesser role than his co-offender. The Judge adopted a starting point of 15 months’ imprisonment.

[6] The first aggravating factor personal to Mr Bryan was his significant criminal history, including dishonesty offending, the most recent offending occurring in June 2020. Second, the Judge considered the most aggravating factor of his offending was that it was committed while Mr Bryan was subject to prison release conditions for serious violence offences. The Judge inferred that Mr Bryan had only been released from prison for some weeks. An uplift of three months was applied for these two factors.

[7] A discount of 20 per cent was applied for guilty pleas. A further 10 per cent was applied for Mr Bryan’s willingness to attend restorative justice and the matters contained in the pre-sentence report and, to a more limited extent, matters in a s 27 report filed by the defence. The Judge stated this brought the total credits amount to 30 per cent. The end sentence was just over one year’ imprisonment, which he reduced to 12 months.

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 Bryan v Police

Details

AGLC: Bryan v Police [2021] NZHC 1147
Case: [2021] NZHC 1147
Decision Date: 21 May 2021

CaseChat Overview and Summary

Kruz Thorne William Bryan appeals against his sentence for burglary imposed by the District Court. The offending occurred when Mr Bryan, together with his co-offender, went onto a residential property in Alexandra and entered a garage that was located behind the house. The co-offender got into a vehicle parked in the garage and began searching it. Mr Bryan left the property and was observed by the victim walking from the garage past the house. The victim went outside and confronted the co-offender, who was still in the vehicle. No items were taken during the burglary. The District Court Judge adopted a starting point of 15 months’ imprisonment and applied an uplift of three months for Mr Bryan’s previous criminal history and for the fact the offending was committed while Mr Bryan was subject to prison release conditions. A discount of 20 per cent was applied for Mr Bryan’s guilty pleas. A further 10 per cent discount was applied for Mr Bryan’s willingness to attend restorative justice. The end sentence was just over one year’ imprisonment, which was reduced to 12 months. Mr Bryan’s counsel submitted the starting point adopted by the District Court Judge was too high and that the uplift for previous convictions was excessive. She submitted the starting point should have been no higher than 12 months’ imprisonment. The Crown submitted a starting point of 12 months’ imprisonment was appropriate and that the uplift of three months for prior convictions and offending while on bail remained proportionate. The Court of Appeal in Moses v R altered the methodology for deducting personal aggravating and mitigating factors and a guilty plea discount to a two-step approach. The starting point of 15 months’ imprisonment was within the range of starting points available for this type of offending. There was no error in the uplift of three months for the previous offending and for offending while on parole. There has been no challenge to a discount of 10 per cent for matters relating to Mr Bryan personally but that discount could have been less without being an error. The appeal was dismissed.

Orders