Craigie v R - [2012] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA735/2011
[2012] NZCA 67

BETWEEN JOSHUA WILLIAM CRAIGIE
Appellant

AND THE QUEEN
Respondent

Hearing: 15 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: J C Hannam for Appellant
B F Fenton for Respondent

Judgment: 6 March 2012 at 11 a.m.

JUDGMENT OF THE COURT

AThe appeal is allowed and the sentence of 16 months imprisonment is quashed.

BA sentence of 14 months and 2 weeks imprisonment is substituted, to be served concurrently with the sentence of one month imprisonment imposed on the theft charge.
COutstanding fines amounting to $11,604.41 are reinstated.

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REASONS OF THE COURT

(Given by Potter J)

Introduction

The appellant was sentenced by Judge Andrée Wiltens to 16 months imprisonment after he was convicted at trial on one charge of burglary and one charge of theft.[1]
[1] R v Craigie DC New Plymouth CRI-2011-045-1169, 19 October 2011.
He appeals the sentence on the ground that it is manifestly excessive. He submits:
(a)The starting point of 12 months imprisonment was too high; and
(b)The four month uplift for previous convictions was excessive.
The Crown contends that:
(a)The starting point of 12 months imprisonment was well within the range available to the sentencing Judge;
(b)The uplift was “unremarkable”; and
(c)Neither rendered the end sentence of 16 months imprisonment manifestly excessive.

Factual background

A burglary of Van Veen Machinery Ltd (Van Veen Machinery) in Midhurst was brought to the notice of police on 5 January 2011. The appellant’s ex-partner advised police that on 22 December 2010 she had witnessed the appellant and an associate break into Van Veen Machinery and emerge with various items of property.
An employee of Van Veen Machinery told police that on the morning of 23 February 2011 he arrived at work to find that the premises had been broken into and items of property were missing.
The appellant and a co-accused, Mr Poa, were charged with one count of burglary and one count of theft. They pleaded not guilty to both counts.
The Crown case at trial was that the appellant and Mr Poa had burgled Van Veen Machinery while the appellant’s ex-partner acted as a lookout and had stolen two copper radiators, one aluminium radiator, some scrap metal and a small welder. The day after the burglary, the appellant sold the welder to an associate. The welder, which was subsequently recovered by police, was the subject of the theft charge. The value attributable to the welder was about $500. The total value of the items stolen was about $600.
The appellant was convicted on both charges. Mr Poa was acquitted.

Personal background

The appellant is 22 years old. He has 23 notations in the Youth Court including 14 notations for burglary offences, of which all except two arise from an apparent burglary “spree” in August 2005. He also has eight notations for dishonesty offences in the Youth Court. He has only one conviction for burglary in the District Court in 2006, for which he…

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 Craigie v R

Details

AGLC: Craigie v R [2012] NZCA 67
Case: [2012] NZCA 67
Decision Date: 6 March 2012

CaseChat Overview and Summary

Joshua William Craigie appeals against his sentence of 16 months imprisonment, imposed by Judge Andrée Wiltens, after his conviction on one charge of burglary and one charge of theft. The Crown contends that the starting point of 12 months imprisonment was well within the range available to the sentencing judge and that the four month uplift for previous convictions did not render the end sentence of 16 months imprisonment manifestly excessive. The appellant submits that the starting point of 12 months imprisonment was too high and that the uplift was excessive. The court considered the premeditation involved in the offending as an aggravating factor, as was the complete lack of remorse expressed by the appellant. The court took a starting point of 12 months on a "totality" basis, taking the burglary as the lead offence with a slight uplift for the theft conviction. The court referred to the appellant’s previous notations in the Youth Court and the convictions for burglary, dishonesty and other offending in the District Court which the court said "do not make happy reading." The court noted the appellant had been out of trouble since serving his most recent prison sentence. The court applied an uplift of four months imprisonment on account of the appellant’s offending history to reach an end sentence of 16 months for the burglary conviction. The court imposed a concurrent sentence of one month for the theft charge. The court agreed that the starting point of 12 months imprisonment was well available to the sentencing judge. The uplift of four months on account of the appellant’s history of offending was one-third of the starting point and the equivalent of the sentence imposed for his only burglary conviction in the District Court. The end sentence of 16 months imprisonment was not manifestly excessive. However, the remission of fines was remitted without jurisdiction and must be reinstated. The court considered a limited reduction in the end sentence to reflect the factor. The appeal is allowed. The sentence of 16 months imprisonment is quashed. In its place, a sentence of 14 months and 2 weeks imprisonment is substituted. Outstanding fines amounting to $11,604.41 are reinstated.

Orders