IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2017-425-15 [2017] NZHC 1434
BETWEEN KANE ALLAN CHALMERS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 June 2017 Appearances:
T J McCullum for Appellant
R W Donnelly for RespondentJudgment:
26 June 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Summary of appeal
[1] The appellant pleaded guilty to two counts of burglary. He was sentenced to
12 months imprisonment in the District Court on 20 April 2017 and given leave to apply for a substituted sentence of home detention. He appeals against the sentence on the basis that it was manifestly excessive. There was and is little or no chance of his finding a suitable address for home detention, so that for this appeal he will serve out his sentence of imprisonment as there are no other viable sentences available, for reasons which follow.
Principles on appeal
[2] Appeals against sentence are brought under s 244 of the Criminal Procedure
Act 2011 (“the Act”), and determined in accordance with s 250 of that Act. This
Court may only allow an appeal against sentence if it is satisfied that there has been
CHALMERS v NEW ZEALAND POLICE [2017] NZHC 1434 [26 June 2017]
an error in the imposition of the sentence, and in that event, a different sentence should be imposed.1
[3] If the sentence under appeal may be justified having regard to the sentencing principles, this Court will not substitute its own views. Only if the sentence is “manifestly excessive” should the Court interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of Development:3
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[4] In Tutakangahau v R,4 the Court of Appeal held that:5
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
District Court Sentencing
[5] In early February 2016, the appellant visited a “semi-rural” property in Invercargill. He stole a tractor radiator and battery, together valued at $550, and sold the steel to a scrap metal merchant. The next week he returned and entered the unoccupied house. He stole property valued at $3,500, including $2,000 in coins. The Judge referred to his “small history” of related offending, which included two convictions for theft of property under $500 in 2016 and a conviction for common assault. The appellant’s homelessness at the time of the offending was unfortunate, as the home he lived in was lost in a fire. The Judge sympathised, but it did not excuse his offending.
[6] Overall, the Judge considered that the gravity of the appellant’s offending…
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