Cullen v Police - [2013] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-81 [2013] NZHC 969

WILSON CULLEN
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 6 May 2013

Counsel: M Kan for the Appellant
W N Fotherby for the Respondent

Judgment: 6 May 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr M Kan, Michael Kan Law, Solicitors, Auckland
Mr W N Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

CULLEN V POLICE HC AK CRI-2013-404-81 [6 May 2013]

[1] This is an appeal against sentence of 3 years and 5 months imposed on 12

March 2013 for offences of receiving, two other property offences and four driving offences.

[2] There were two property offences which occurred between 3 and 4 December

2012. One was dishonestly interfering with a motor vehicle. This has a maximum penalty of 2 years imprisonment. The other was theft from this vehicle, with a maximum penalty of 3 months imprisonment. The appellant smashed the rear window of a car, got into it and stole a GPS and a jacket.

[3] The other offences occurred on 14 December 2012. There was one offence of receiving a car worth $2,000 which had been stolen the day before. The maximum penalty is 7 years imprisonment. The four driving offences occurred when the appellant was driving this car early in the morning of 14 December. Police attempted to stop the car on Te Atatu Road. The appellant drove away at high speed. He drove from Te Atatu West through central Auckland to Tamaki Drive and then to Orakei before being stopped by road spikes in Meadowbank. He fled the car and was tracked by a police dog and arrested shortly afterwards. He drove at speeds up to 150 kilometres per hour. It is unclear whether this was on the motorway, but it is apparent that he got up to speeds of at least 130 kilometres an hour through suburban or city streets where the limit was 50 kilometres per hour. There is a description of the appellant driving along Karangahape Road at 80 kilometres per hour swerving over the road into oncoming traffic. He had not stopped initially, in spite of flashing lights from the police car, and he did not stop although the police helicopter was overhead.

[4] The driving offences are:

(a) A third or subsequent offence of driving with excess breath or blood alcohol with a maximum penalty of 2 years. This was the fourth offence. The level was 496 micrograms. It is relevant in this regard that the appellant is still only 21 years old.

(b)There was an offence of failing to stop, being a third or subsequent occasion. This was the fourth. The maximum penalty is 3 months imprisonment.

(c) An offence of reckless driving with a maximum penalty of 3 months imprisonment.

(d)An offence of driving while disqualified, also with a maximum penalty of 3 months imprisonment.

[5] The appellant’s previous offences are of significance in relation to this appeal. As noted he was 21 years…

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 Cullen v Police

Details

AGLC: Cullen v Police [2013] NZHC 969
Case: [2013] NZHC 969
Decision Date: 6 May 2013

CaseChat Overview and Summary

The appellant, Wilson Cullen, appealed against a sentence of 3 years and 5 months imposed for various offences, including receiving stolen property and multiple driving offences. The appellant had a history of over 70 previous convictions, including numerous driving and property offences. The appellant's offending pattern involved stealing a car and engaging in reckless driving at high speeds while evading police. The District Court had rejected a submission for an intensive supervision sentence, instead imposing imprisonment to denounce the appellant's conduct, act as a deterrent, and protect the community. The appeal focused on whether the sentence was manifestly excessive, particularly due to the starting point and uplifts applied for the various offences.

The court examined whether the starting point of 3 years for the receiving offence was appropriate, given the misapprehension of a previous case. It was noted that the receiving offence might not be the most serious offence compared to the driving offences. The court considered the totality of the offending, including the pattern of repeated similar offences. The court assessed whether an uplifted starting point of 4 years and 3 months was manifestly excessive, considering the seriousness of the driving offences and the appellant's complete disregard for previous sentences. The court also examined whether there should have been an allowance for the appellant's youth and the appropriate discount for the guilty pleas. Ultimately, the court determined that an uplifted starting point of 4 years was not manifestly excessive but concluded that an allowance of 25% for youth and guilty pleas would result in an appropriate sentence of 3 years.

The appeal was allowed, and the sentence of 3 years and 5 months was quashed. The sentence for the receiving offence was reduced to 3 years imprisonment, while the other sentences and disqualification periods remained unchanged.

Orders