Chalmers v Police - [2017] NZHC 1434

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 Respondent

Judgment:

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…

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 Chalmers v Police

Details

AGLC: Chalmers v Police [2017] NZHC 1434
Case: [2017] NZHC 1434
Decision Date: 26 June 2017

CaseChat Overview and Summary

The case of Chalmers v Police involves an appeal against the sentence imposed by the District Court on Kane Allan Chalmers, who was convicted of two counts of burglary. Chalmers argued that the sentence of 12 months imprisonment was manifestly excessive, particularly because there was little chance of him finding a suitable address for home detention. The appeal was heard by the High Court of New Zealand, which found that while the starting point of 16 months imprisonment was within the appropriate range, the overall sentence was excessively harsh in light of Chalmers' personal circumstances, which included homelessness. The High Court substituted a sentence of nine months imprisonment, with the same release conditions and suspended balance of community work. The decision highlights the importance of considering the individual circumstances of the offender when imposing a sentence, and the principle that imprisonment should be a measure of last resort. The High Court's decision also emphasises the need for flexibility in sentencing, particularly in cases where the offender's personal circumstances make it difficult or impossible to serve a community-based sentence. The case serves as a reminder that sentencing should be proportionate and take into account the unique circumstances of each offender, in order to achieve the goals of justice and rehabilitation.

Orders