Byles v Police - [2016] NZHC 56

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-00049 [2016] NZHC 56

BETWEEN
ERRON JAMES BYLES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2016

Counsel:

J C Hannam for Appellant
S J Simpkin for Respondent

Judgment:

3 February 2016

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

Introduction

[1] The appellant pleaded guilty to one charge of burglary.1 He appeals the

sentence of two years and six months’ imprisonment.

Offending

[2] Mr Byles attended the scene accompanied by his partner.2 He alone went inside by forcing open a window, having previously failed in his efforts to open a door. The house was occupied by its two owners, one of whom confronted the partner parked outside. This led to Mr Byles leaving the property without removing
anything.

1 New Zealand Police v Byles [2015] NZDC 23828.
2 She is charged with the same offence but denies she was involved. The trial has not yet taken place.

BYLES v NZ POLICE [2016] NZHC 56 [3 February 2016]

Offender

[3] Mr Byles is 35 years old. He has a bad history of past offending involving 99 convictions and 56 terms of imprisonment. Of these, eight are for burglary, the latest being 2008. That said, there have been 16 convictions since then, including robbery, being in an enclosed yard, demands to steal, threats to do various violent acts, and male assaults female (x2), as well as driving offences.

Sentencing

[4] The Judge took a starting point of three years’ imprisonment, added six months for past offending, and then discounted the total by one year for the plea and the fact there was minimal damage caused and no goods taken.3

Decision

[5] The key question is always whether the outcome is within range. Here a six month uplift for this criminal history, including the fact that Mr Byles was at the time of the offending both on release conditions and subject to a sentence of community work, was by no means stern. Up to a year could have been expected in a case where considerations not only of deterrence but of protection of the public loom large.

[6] As regards these concerns Mr Hannam points to material that suggests Mr Byles is at last seeking to break this offending cycle he has long been in. There are legitimate third party observations of a new-found commitment, tempered (as is often the case) by the reality that for now it is manifested only by words. The objective facts show no change at all in a persistent and somewhat violent pattern of
behaviour.

3 It is common ground these matters have been incorrectly considered as part of personal

[7] Important to the success of the appeal is the correctness of Mr Hannam’s submission that the starting point should have been 18 months rather than three years. The respondent has pointed to cases where a figure higher than 18 months has been taken, but in my view the balance of authority favours Mr Hannam’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 Byles v Police

Details

AGLC: Byles v Police [2016] NZHC 56
Case: [2016] NZHC 56
Decision Date: 3 February 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Erron James Byles against his sentence for burglary. Byles had pleaded guilty to one charge of burglary and appealed the two-year-and-six-month imprisonment sentence imposed on him. The legal issues before the court were whether the starting point for the sentence was correctly set at three years, the applicability of various aggravating factors, and the extent of the discount for the guilty plea. The court found that the starting point should have been 18 months rather than three years, and that the presence of Byles' young children in his car was not an appropriate aggravating factor. The court also considered the mitigating factors, including Byles' attempt to make reparation of $400. The court allowed the appeal, quashed the original sentence, and imposed a sentence of 21 months’ imprisonment, together with an order for reparation of $400 to be paid immediately.
The court found that the starting point for the sentence should have been 18 months, rather than the three years set by the trial judge. The court noted that the balance of authority favoured the lower starting point, given that the burglary involved a single dwelling during the day, with minimal damage and no goods taken. The court also considered various aggravating factors, such as the presence of the occupants and the use of a jemmy, but found that these did not warrant an increase in the sentence. The court found that the presence of Byles' young children in his car was not an appropriate aggravating factor, as they were not at risk and would not have been aware of the offending. The court also found that the suggestion of multiple offenders was not appropriate, as the other accused claimed her presence was innocent. The court considered the mitigating factors, including Byles' attempt to make reparation of $400, and found that this merited recognition and a discount in the sentence.

Orders