Charlett v Police - [2014] NZHC 3002

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-34 [2014] NZHC 3002

BETWEEN
SIMON SYDNEY CHARLETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 November 2014

Appearances:

J Turner for the Appellant
R D Smith for the Respondent

Judgment:

28 November 2014

JUDGMENT OF MALLON J

Introduction

[1] Mr Charlett pleaded guilty to and was convicted on one count of burglary,1 two counts of shoplifting,2 and one count of failing to answer police bail.3 He was sentenced in the District Court at Dunedin to one year imprisonment.4 He appeals against that sentence on the ground that it is manifestly excessive because the starting point adopted in respect of the burglary offence was too high.

The offending

Shoplifting

[2] On 30 April 2014 Mr Charlett stole grocery items, valued at $13.80, from a dairy. On 11 June 2014 Mr Charlett stole two bottles of wine from a Pak’nSave

1      Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years imprisonment).
2      Sections 219 and 223 (maximum penalty of three months imprisonment).
3      Bail Act 2000, s 24 (maximum penalty of three months imprisonment or a fine not exceeding
$1,000).
4      Police v Charlett DC Dunedin CRI-2014-012-1815, 3 September 2014.

CHARLETT v NEW ZEALAND POLICE [2014] NZHC 3002 [28 November 2014]

store. A trespass order for a period of two years in respect of that store was served on him that day.

Burglary

[3] On 19 June 2014 Mr Charlett returned to the Pak’nSave store from which he had been trespassed. He picked up a bottle of wine and three chocolate bars, together valued at $21.52, and put them in his pocket. He walked past the checkout without paying for the items and was apprehended by security personnel. He was initially charged with trespass and theft in relation to this offending. He instructed counsel to enter guilty pleas to both charges on 11 July 2014. However the prosecution advised that those two charges were withdrawn and a charge of burglary had been laid. Mr Charlett subsequently entered a guilty plea to that charge.

Breach of bail

[4] Mr Charlett was on bail in relation to these matters. On 26 June 2014 he breached bail by failing to attend court.

The offender

[5] Mr Charlett is 57 years old. Prior to being sentenced to imprisonment he was unemployed. He has significant alcohol issues.

[6] Mr Charlett has over 120 convictions entered between 1973 to 2010 (including some entries in the Youth Court). His most recent offence, prior to the present offending, was a burglary conviction (for stealing items under $500 by day) committed in 2010. There have been two major gaps in his offending, the most recent being between 2010 and his present offending, and the other being between
1996 and 2004. The bulk of his offending consists of dishonesty offences (burglary, shoplifting, theft and receiving property, all typically below $500), unlawful presence offences (wilful trespass and unlawfully being in a building), and breach of orders (failure to answer District Court…

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 Charlett v Police

Details

AGLC: Charlett v Police [2014] NZHC 3002
Case: [2014] NZHC 3002
Decision Date: 28 November 2014

CaseChat Overview and Summary

In Charlett v Police, the appellant, Simon Sydney Charlett, appealed against his sentence of one year imprisonment for one count of burglary, two counts of shoplifting, and one count of failing to answer police bail. The appeal was heard in the High Court of New Zealand at Dunedin. The court was tasked with determining whether the sentence imposed by the District Court was manifestly excessive, specifically focusing on the starting point adopted for the burglary offence.

The court considered the appropriate starting point for the burglary charge, which Charlett argued should have been based on the shoplifting component rather than the burglary itself. The appellant contended that the starting point should have been in the range of six to eight months, leading to a final sentence of seven to eight and a half months, rather than the twelve months imposed. The respondent argued that the burglary should be treated as such, and the starting point of nine months was appropriate. The court found that a starting point of no more than six months was appropriate for the burglary charge, considering it to be at the very lowest end of burglary offending. The court also concluded that the total uplift for the other offences, occurring while on bail, and Charlett's repeat offender status should not exceed two to three months. Consequently, the court determined that a sentence of six months imprisonment was appropriate.

The court allowed the appeal, quashed the twelve-month sentence on the burglary charge, and substituted it with a six-month sentence. The concurrent one-month sentence for the breach of bail charge was also quashed, and Charlett was convicted and discharged on that charge. The sentences for the two shoplifting offences, the reparations ordered, and the conditions attaching to the sentence remained in place.

Orders