Cornelissen v Police - [2020] NZHC 2139

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-0029

[2020] NZHC 2139

BETWEEN
VINNIE ANTONIO CORNELISSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 August 2020

Appearances:

N J Moore for the Appellant

B M O’Connor for the Respondent

Judgment:

24 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 24 August 2020 at 4.30 pm Registrar/Deputy Registrar
Date:

CORNELISSEN v NEW ZEALAND POLICE [2020] NZHC 2139 [24 August 2020]

[1] On 19 June 2020 Judge H B Shortland sentenced the appellant, Vinnie Cornelissen, to two years and five months’ imprisonment and disqualified him from driving for 13 months.1 Mr Cornelissen had pleaded guilty to a wide range of relatively low-level offending between July and December 2019. The offending comprised a single charge of burglary;2 two charges of unlawfully getting into a motor vehicle;3 two charges of driving while disqualified;4 two charges of breach of release conditions;5 a single charge of unlawfully getting into a motor vehicle;6 and a charge of failing to stop.7

[2] Mr Cornelissen appeals against his sentence on the grounds it was manifestly excessive. Specifically, Mr Cornelissen contends that Judge Shortland erred by:

(a)failing to adjust the starting point to address the totality of the overall offending;

(b)failing to give sufficient discounts for personal mitigating factors and guilty pleas; and

(c)declining to impose a sentence of home detention.

The District Court decision

[3] Judge Shortland identified Mr Cornelissen’s offending as a series of sprees and deemed a cumulative sentence appropriate. However, for offending occurring within a spree Judge Shortland proposed that the offences would “be grouped together in terms of a concurrent sentence and added to the overall total cumulative sentence”.8 His Honour then configured a starting point as follows:

1      Police v Cornelissen [2020] NZDC 11684.
2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3      Section 226(2). Maximum penalty 2 years’ imprisonment.
4      Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty 2 years’ imprisonment.
5      Sentencing Act 2002, s 96(1). Maximum penalty 1 year imprisonment.
6      Crimes Act 1961, s 226(1). Maximum penalty 7 years’ imprisonment.
7      Land Transport Act 1998, ss 52A(1)(a)(i) and 114(1). Maximum penalty $1,000 fine.
8 At [3].

(a)five months’ imprisonment for the breach of parole charges in July and December 2019;9

(b)seven months’ imprisonment to reflect the driving while disqualified, unlawfully getting into a motor vehicle and failing to stop beginning in Kerikeri on 17 August 2019;10

(c)12 months’ imprisonment for a burglary carried out in Warkworth on 25 October 2019;11

(d)six months’ imprisonment for driving while disqualified in Hamilton on 5 November 2019;12

(e)six months’ imprisonment for unlawfully taking a motor vehicle in Hamilton on 8 December 2019;13 and

(f)three months’ imprisonment for the further charge of unlawfully getting into a vehicle in Hamilton on 15 December 2019.14

[4] This resulted in an overall starting point of 3 years and 3 months’ (39 months) imprisonment. From here Judge Shortland proceeded to…

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.

Keep reading for free

Create a free CaseChat account to read Cornelissen v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 2139
Decision Date: 24 August 2020

CaseChat Overview and Summary

Vinnie Antonio Cornelissen appeals against his two years and five months imprisonment sentence for a series of relatively low-level offences between July and December 2019. Cornelissen argues that the sentence imposed by Judge Shortland was manifestly excessive because the starting point was too high, the discounts were inadequate, and home detention should have been imposed. The High Court considered whether the sentence was manifestly excessive and if there was an error in the sentence imposed by Judge Shortland. The Court held that the starting point was within the available range, the deductions were appropriate, and home detention was not suitable given the appellant's methamphetamine addiction and lack of a suitable address for home detention. The appeal was dismissed.

The court concluded that Judge Shortland's starting point of three years and three months imprisonment was within the available range, given the nature, number, and spread of the offences. The court also held that Judge Shortland's reference to applying "the Hessell discount" did not mean a full 25 per cent discount was to be applied, but rather a 15 per cent discount for the guilty pleas. The total discount of 25.6 per cent was within range, with approximately 10 per cent attributed to other factors. The court found that the end sentence of two years and five months was well outside a short-term sentence, and no further deduction was warranted for time served. The court also rejected the argument that home detention was appropriate, given the appellant's methamphetamine addiction and lack of a suitable address.

Orders