Currie v Police - [2019] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000085

[2019] NZHC 1946

BETWEEN
PHILIP LEONARD CURRIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 August 2019

Appearances:

O K Jarvis for the Appellant

J H Whitcombe for the Respondent

Judgment:

12 August 2019

JUDGMENT OF NATION J

Introduction

[1] Mr Currie pleaded guilty to burglary, unlawfully taking a mountain bike valued at $8000, driving whilst disqualified third or subsequent, unlawfully taking a motor vehicle valued at $5000 and breaching release conditions. He was sentenced by Judge Garland on 26 June 2019 to two years and six months’ imprisonment.

[2] Mr Currie appeals the sentence on the basis that the starting point was too high, there was no discount for remorse and there was a disproportionate uplift for Mr Currie’s criminal history.

CURRIE v POLICE [2019] NZHC 1946 [12 August 2019]

Facts

Charge 1: burglary

[3] Between Saturday 23 March and Sunday 24 March 2019, the victims had left their mountain bikes in a garage on their property. Mr Currie entered the unlocked garage and stole a Giant mountain bike valued at $800 and GT Mountain Bike valued at $600. Mr Currie admitted to the burglary.

Charges 2 and 3: taking a motor vehicle and drove while disqualified 3rd or subsequent

[4] On Sunday 24 March 2019, the victim parked her Toyota motor vehicle on her property. The following day, she reported the vehicle stolen. Mr Currie was found driving that motor vehicle in Christchurch and admitted taking the vehicle.

[5] Mr Currie had been disqualified from driving indefinitely by the District Court after being convicted of driving with excess breath alcohol in 2002. He admitted to driving while disqualified.

Charge 4: unlawfully taking a bicycle

[6] On 25 March 2019, Mr Currie walked past an address and noticed a mountain bike leaning against the fence on a shared driveway. He walked down the drive and, seeing that the mountain bike was not secure, rode away on the bike. The bike was valued at $8000. On Wednesday 27 March, the Police received information from an anonymous source that this mountain bike was at Mr Currie’s address. The Police went to his address and found the mountain bike inside the doorway of Mr Currie’s home. He admitted taking the mountain bike and said he had planned to sell it to fund his addiction to drugs.

Charge 5: Breach of release condition

[7] Mr Currie was released from prison on 21 May 2018 and was subject to approximately eight months of release conditions. He failed to report to probation as required three times and received two warning letters. On 14 January 2019, he again failed to report to his probation officer as directed and was charged.

District Court decision

[8] The Judge noted Mr Currie is 44 years old with a long history of offending. Mr Currie has over 100 convictions that include dishonesty, driving, drug, alcohol, violence related and sexual offending along with…

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.

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Details

Case: [2019] NZHC 1946
Decision Date: 12 August 2019

CaseChat Overview and Summary

Currie appealed against his sentence for multiple charges including burglary, unlawful taking of a motor vehicle, and driving while disqualified. The appeal was based on the contention that the starting point for sentencing was too high, there was no credit given for remorse, and the uplift for his criminal history was disproportionate. The High Court found that the starting point for the burglary charge could have been lower, but the overall starting point of 30 months' imprisonment was within range. The Court also found that the uplift for Mr Currie's criminal history was justified due to his extensive history of dishonesty offences and the risk he posed to the community. Additionally, the Court held that the sentencing Judge was not required to give additional credit for remorse as the letters of apology were late and there were other factors that justified the Judge's decision. The appeal was dismissed, and the original sentence was upheld.

Orders