Dixon v Police - [2013] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-119 [2013] NZHC 1469

BETWEEN PATRICK DIXON Appellant

ANDPOLICE Respondent

Hearing: 17 June 2013

Appearances: R E V Slade for Appellant
R J Y See for Respondent

Judgment: 18 June 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
18 June 2013 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland

PATRICK DIXON v POLICE [2013] NZHC 1469 [18 June 2013]

[1] The appellant, Mr Dixon, appeals against an effective sentence of two years and three months’ imprisonment that was imposed by Judge Collins in the District Court on two counts of burglary.

The facts

[2] At some time between 2.00 pm on Friday 3 February and 3.00 pm on Monday 6 February 2012, personal effects, including a passport,1 were stolen in a burglary committed at a property in Titirangi, Auckland. The fingerprints uplifted at the scene were later found to belong to Mr Dixon.

[3] On the afternoon of Wednesday 8 February 2012, the appellant, together with an associate, burgled another property in Titirangi. The offenders attempted to jemmy open the front door of the property, but this was unsuccessful. They then climbed to the second level of the house using an external staircase where they smashed the master bedroom window. The master bedroom was “ransacked” and a pillowslip was filled with shirts, an iPod and electrical connectors. They then left the address, but for reasons unexplained the stolen property was left at the bottom of the driveway where it was found by the owner next day. Once again, Mr Dixon’s fingerprints were uplifted from the scene.

The sentence in the District Court

[4] Mr Dixon pleaded guilty in the Manukau District Court and was sentenced on

15 March 2013 by Judge Collins. After referring to a recent Court of Appeal decision2 the Judge noted that a sentencing starting point for one burglary of a residential property would be “somewhere between 18 months and two and a half years”. The Judge continued:

Taking that and being as generous as I can to you because I accept your counsel’s views today that you really do want to rehabilitate yourself, the point I get to taking into account that I have got guilty pleas for two burglaries, has to be at the top of the range for one, and that is two and a half

1 The caption summary gives no further details as to what was stolen or its value.
2 The case had been the subject of an exchange between the Judge and counsel, but not identified in the actual sentencing remarks. This is not a criticism: the names of the cases on which sentencing Judges rely will often be of no interest to the offender. It can be inferred that the case referred to was Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

years’ starting point for…

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 Dixon v Police

Details

AGLC: Dixon v Police [2013] NZHC 1469
Case: [2013] NZHC 1469
Decision Date: 18 June 2013

CaseChat Overview and Summary

In Dixon v Police, the appellant, Mr Dixon, appealed against an effective sentence of two years and three months' imprisonment imposed by Judge Collins in the District Court on two counts of burglary. The appellant's counsel contended that the sentence was manifestly excessive. The respondent, the Police, submitted that the sentence was within the range open to the sentencing Judge. The legal issues before the court were whether the starting point adopted by the District Court was too high and if the reductions made for the guilty plea and rehabilitative prospects were generous.

The court found that the starting point adopted by the District Court was too high, and a starting point of 18 months for the offending that took place on 8 February would have been more appropriate, with an increment of four months to reflect the second offence. However, the court noted that the uplift of six months to reflect the substantial number of previous convictions was generous. The court also considered that the reduction of six months for the guilty plea, combined with the further reduction of three months for Mr Dixon's rehabilitative prospects, was generous. The court concluded that although the starting point adopted was too high, the various allowances made righted the balance. The resulting sentence could be described as stern, but it was within the range available to the Judge and not clearly excessive.

The appeal was dismissed.

Orders