Carbines v Police - [2014] NZHC 439

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000049
CRI 2013-488-000050

CRI 2013-488-000051 [2014] NZHC 439

BETWEEN RUSSELL OGILVIE CARBINES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 March 2014

Appearances: M J Kidd for Appellant
M Smith for Respondent

Judgment: 12 March 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 12 March 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Kidd Legal, Henderson, Auckland
Crown Solicitor, Whangarei

CARBINES v NEW ZEALAND POLICE [2014] NZHC 439 [12 March 2014]

Introduction

[1] On 10 October 2013, the appellant was sentenced by Judge G Davis in the District Court at Whangarei to a term of imprisonment of two years and seven months, on four charges of burglary, three charges of driving while disqualified, and one charge each of theft, dangerous driving, and failing to stop.1 The appeal is on the grounds that the sentence is excessive in the circumstances.

[2] The appeal was filed one day out of time, and an extension of time is sought. No opposition was raised by the respondent. Accordingly, time is extended for the appeal to be brought.

Background

[3] Between 22 and 25 May the appellant and an associate committed a burglary at a property in Waitakere, stealing three passports, a bottle of whisky, and torches. On 25 June 2013, the appellant and his associate committed a burglary at another property at Waitakere, stealing a laptop computer, external hard drive, play station games, makeup, a bracelet, concert tickets, a passport, and an iPod. Between 1 and 9
July 2013, the appellant committed a burglary at a property at Whangarei, and stole tools and other items from a garage. The fourth burglary was also of a property in Whangarei, on 10 July 2013. The appellant stole two laptops, a digital camera, and old cell phones.

[4] The theft offence was on 11 July 2013, when the appellant and an associate stole property from a van parked on the road.

[5] The appellant acknowledged driving while disqualified, on three occasions. Then on 11 July 2013, the appellant was disturbed breaking into a vehicle. The Police attempted to stop him on the road, but the appellant failed to stop and drove off at speed. To avoid being apprehended, he overtook a number of vehicles on a dangerous piece of road. The appellant could not be located on that occasion. The
appellant also drove while disqualified on 16 May and 17 June 2013.

1 Police v Carbines DC Whangarei CRI-2013-088-2009, 10 October 2013.

District Court sentencing

[6] Judge Davis took the burglary charges as the lead charges. Aggravating factors were that the burglaries primarily involved residential dwellings, and were targeted as being unoccupied (thus involving premeditation or planning). The Judge also inferred that the passports had been stolen to be sold into the “criminal underworld”, leading to a conclusion that the appellant’s culpability was at the upper end of the scale.

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.

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Details

Case: [2014] NZHC 439
Decision Date: 12 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Russell Ogilvie Carbines, appealed against his sentence which was imposed by Judge G Davis in the District Court at Whangarei. The appellant was sentenced to a term of imprisonment of two years and seven months on multiple charges including burglary, driving while disqualified, theft, dangerous driving, and failing to stop. The appeal was based on the grounds that the sentence was excessive. The court was required to decide whether the sentence was excessive and if there was an error in the sentence imposed that warranted a different sentence. The court also had to determine if the appellant's drug addiction should have been taken into account during sentencing.

The court found that the District Court Judge did not err in imposing the sentence, as the Judge was not required to call for a drug and alcohol assessment when one was not sought. The court held that the appellant’s involvement in treatment programmes was a matter for the Parole Board and not the High Court. The court dismissed the appeal and upheld the original sentence.

Orders