Devlyn v The Queen - [2013] NZCA 462

IN THE COURT OF APPEAL OF NEW ZEALAND

CA268/2013
[2013] NZCA 462

BETWEEN	KYLE ADAM DEVLYN Appellant
AND	THE QUEEN Respondent

Hearing:	18 September 2013
Court:	Miller, Cooper and Lang JJ
Counsel:	W N Dollimore for Appellant B D Tantrum for Respondent
Judgment:	4 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time within which to appeal is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Devlyn pleaded guilty in the District Court to two charges of burglary and four charges of receiving stolen property. He also pleaded guilty to charges of being unlawfully in possession of a sawn-off shotgun and ammunition. He pleaded not guilty to two further charges of receiving, but was subsequently found guilty on both those charges following trial by jury. On 19 March 2013, Judge Connell sentenced Mr Devlyn to an effective term of two years eight months imprisonment.[1]
[1]R v Devlyn HC Hamilton CRI-2012-019-927, 19 March 2013.
Mr Devlyn seeks to appeal on the basis that the sentence is manifestly excessive because the Judge selected starting points for individual sentences that were too high. He also argues that the Judge ought to have applied a discount to reflect the fact that he had been subject to a 24 hour curfew for approximately eight months prior to his trial.

Application for extension of time

Mr Devlyn filed his appeal against sentence slightly out of time. He now seeks an extension of time within which to appeal.
The Crown does not oppose an extension of time being granted. We therefore make an order granting an extension of time within which to appeal.

The offending

On the night of 4 October 2011, a commercial property in Hamilton was burgled. A welder having a value of approximately $3500 was stolen from the premises. On 25 October 2011 another burglary occurred, this time at a residential address in Hamilton. Among the items stolen was a Samsung television set worth between $500 and $1000.
On 10 February 2012, the police executed a search warrant in respect of a storage unit rented by Mr Devlyn and an associate. The police discovered the stolen welder and television set inside the unit. Mr Devlyn admitted storing items in the unit, but denied any knowledge of the stolen goods. Mr Devlyn and his associate stood trial on these charges, but were both found guilty by the jury.
On 10 February 2012 the police also executed a search warrant at Mr Devlyn’s work address. Mr Devlyn arrived during the course of the search. When the police searched his vehicle, they found a sawn-off shotgun and four shotgun cartridges behind the driver’s seat. Mr Devlyn does not hold a firearms licence. He told the police that he had the shotgun and ammunition for his protection. This led to the charges of being unlawfully in possession of a firearm and ammunition. Mr Devlyn pleaded guilty to these charges at callover…

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 Devlyn v The Queen

Details

AGLC: Devlyn v The Queen [2013] NZCA 462
Case: [2013] NZCA 462
Decision Date: 4 October 2013 at 2.30 pm

CaseChat Overview and Summary

Kyle Adam Devlyn appeals against the sentence imposed by the District Court for multiple charges including burglary, receiving stolen property, and unlawful possession of a firearm and ammunition. The Crown does not oppose the granting of an extension of time for the appeal, which was filed slightly out of time. The Court of Appeal grants the extension and proceeds to consider the substantive appeal.

The appeal hinges on the contention that the sentence imposed was manifestly excessive because the starting points for individual sentences were too high, and that the judge should have applied a discount to reflect Devlyn's adherence to a 24-hour curfew during the period he was on bail. The Court analyses the starting points and the reasons for the uplifts and discounts applied by the sentencing judge. It concludes that the starting points, though at the upper end of the range, were not excessive given the nature of the offences, the value of the stolen goods, and the defendant's drug use which contributed to his offending behaviour. The Court also notes that the sentence imposed for the first group of charges was lenient, especially considering the firearm and ammunition charges, and the discount applied for guilty pleas exceeded the maximum permissible by law.

Regarding the failure to apply a discount for the restrictive bail conditions, the Court observes that while such a discount is permissible, the absence of such a discount does not render the sentence manifestly excessive when the overall sentence is considered lenient. The Court thus finds no error in the sentencing judge's approach.

The Court of Appeal dismisses the appeal against sentence, finding that the sentence imposed was not manifestly excessive.

Orders