Daniels v Police - [2017] NZHC 3070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-359 [2017] NZHC 3070

BETWEEN
LORENZO GENE DANIELS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 December 2017

Counsel:

P I Pati (on instructions from J Johnson-Aufaʼi) for Appellant
F E Gourlay for Respondent

Judgment:

11 December 2017

JUDGMENT OF BREWER J

Solicitors:
Public Defence Service (Auckland) for Appellant
Kayes Fletcher Walker (Auckland) for Respondent

DANIELS v POLICE [2017] NZHC 3070 [11 December 2017]

Introduction

[1] Mr Daniels appeals against his sentence of two years and six months’ imprisonment handed down against him by Judge GA Andrée Wiltens in the District Court at Manukau on 14 September 2017.1 The submission made on his behalf is that the sentence is manifestly excessive, should have been two years or less, and should have been commuted to a sentence of home detention.

[2] Mr Daniels is a man of 26 years. He has a problem with gambling and with drug taking. He comes from a good family and he has a partner and children. It is the intense desire of his family to assist with his rehabilitation, which I suspect provides much of the motivation for today’s appeal.

[3] Mr Daniels does not have an extensive criminal record as these things go. However, on 2 May 2016 he was sentenced on nine charges of dishonesty involving multiple thefts and shoplifting. He was given a very significant chance on that occasion because he was convicted and discharged on all of those charges. The offending for which he was sentenced by Judge Andrée Wiltens commenced three months later.

[4] My task on an appeal against sentence is to look at what the District Court Judge did and see whether he was in error to such an extent that a different sentence should be imposed. The position is different when considering home detention. If a sentencing Judge decides that the appropriate sentence is one of imprisonment of a period of two years or less, then the sentencing Judge may commute the sentence to one of home detention. That is a matter for the discretion of the Judge. I would overturn such an exercise of discretion only if I were to decide that the Judge had committed some error in the exercise of it. In this case, the Judge did not turn his mind to home detention because the end sentence was greater than two years. Accordingly, if I find that the sentence should have been one of two years or less, I would have to
exercise that discretion myself.

1 Police v Daniels [2017] NZDC 20747.

Background

[5] I turn now to the factual background.

[6] Mr Daniels came before Judge Andrée Wiltens for sentencing on 12 separate charges which can be grouped into three parts.

[7] The first part was this. On 14 August 2016, 16 September 2016 and 12 October

2016, Mr Daniels filled his car with petrol at petrol stations and then drove off without…

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 Daniels v Police

Details

AGLC: Daniels v Police [2017] NZHC 3070
Case: [2017] NZHC 3070
Decision Date: 11 December 2017

CaseChat Overview and Summary

In this case, Lorenzo Gene Daniels appeals against a sentence of two years and six months’ imprisonment imposed by Judge Andrée Wiltens in the District Court at Manukau. The appeal contends that the sentence was manifestly excessive and should have been two years or less, potentially commuted to home detention. Daniels, a 26-year-old with a history of gambling and drug problems, committed multiple thefts and shoplifting offences, culminating in a series of serious incidents in late 2016 and early 2017. These included stealing a handbag from a swimming pool changing room, unlawfully taking a car, and using a stolen credit card.

The court had to decide whether the District Court judge correctly assessed the appropriate sentence, particularly in light of the mitigating factors presented. The appellant's counsel argued that the judge should have given greater weight to Daniels's personal circumstances, including his supportive family and the potential for rehabilitation through home detention. However, the judge had already considered the mitigating factors and applied the maximum discount available, reducing the sentence from 40 months to two years and six months. The court's task was to review the judge's assessment and determine if there was an error warranting a different sentence.

Upon reviewing the evidence, the court found that the seriousness of Daniels's offending warranted a substantial custodial sentence. The total starting point was 45 months, reduced to 40 months after considering the totality of the offending, and further reduced to two years and six months with the mitigating factors. The court concluded that the sentence was within the appropriate range and dismissed the appeal, affirming the District Court's decision.

Orders