Cowley v Police HC Christchurch CRI 2008-409-000144

[2008] NZHC 2674

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000144

ADRIAN COWLEY

Appellant

v

POLICE

Respondent

Hearing:         6 November 2008

Counsel:         G Henderson for Appellant

T Mackenzie and S Jamieson for Crown

Judgment:      6 November 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence of a total of two years four months imprisonment on the grounds that it is manifestly excessive.

[2]      The appellant had pleaded guilty to burglary, dangerous driving, unlawful possession of a pistol (it was actually a sawn-off shot gun), unlawful possession of ammunition, two charges of possession of a pipe, and breach of community work. The context is summed up in the first four paragraphs of  the  Judge’s  notes  of sentencing:

[1]       Adrian Cowley, I see you again in a sentencing role.  I well recall the last time because it gave me much angst in the sentencing and I am sure that if we dug out the remarks that I made it would be seen that I was

COWLEY  V POLICE  HC CHCH CRI 2008-409-000144  6 November 2008

persuaded to give you a chance.   This is very similar offending.   You are back here again today for sentence on possession of a sawn-off shotgun which was found in the foot well of a car in which you were travelling, also in possession of ammunition for that shotgun.  You also had a meth pipe and a cannabis pipe.

[2]       On top of that you tried to evade the police and to say you drove dangerously is a complete under-statement, I think.  Driving at excess speeds through  stop  signs,  travelling at  140  kilometres  in  a  70  kilometre  area. Later, I think, on the open road at 170 kilometres per hour, where you undertook  a  vehicle  directly  in  front  of  you  and  you  did  this,  I  think, probably in a built up area, if you passed Shell Waikuku at 170 kilometres. The highway patrol abandoned the pursuit. That all happened on 21 June.

[3]       Earlier on 23 May you and others had been involved in a burglary of a dwelling house, forced the window, and goods were removed to about the value of $4,000.  They included a laptop, a DVD and a cellphone, the loss of which severely inconvenienced the victim.  The place was also trashed in the sense that many of the drawers containing goods were turned upside down and strewn about the place. I have had a report from the owner of that property and I can understand his angst about all of that.

[4]       In September of last year I imposed a good long term of community work, because I was convinced that you ought to be given a chance, for very, very similar offending.   In total you have a sentence of 400 hours of community work, which is the maximum.  So it showed the sort of response the Court had to your previous offending, to fall short of imprisonment and to give you the chance that everyone said I should give you.

[3]      Mr Henderson has been unable to persuade me to the view that the sentence imposed in the circumstances was manifestly excessive.  He has persuaded me that the  first  sentence of  imprisonment  for  this  young  man  could  have  been  lighter notwithstanding the significant aggravating circumstances.  However, that is not the question.  The question is whether the term is manifestly excessive.  Mr Henderson has been unable to cite any authority which would indicate that the Judge has gone beyond the tariff.  The repeated possession of firearms is a matter of serious concern and of itself justifies a higher starting point on the possession of firearms charges.

[4]      In the result then, having considered all of the reasoning of the Judge, I can see no error of principle.  Nor am I satisfied the sentence is manifestly excessive and accordingly the appeal is dismissed.

Solicitors:

G Henderson, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent