Do Santos v The King - [2024] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000264

[2024] NZHC 2480

DANIEL DO SANTOS

v

THE KING

Hearing: 1 July 2024

Appearances:

J Yi for the Appellant

P McNabb for the Respondent

Judgment:

30 August 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 30 August 2024 at 12 pm Registrar/Deputy Registrar

Solicitors:

J Yi, Barrister, Auckland
P McNabb, Meredith Connell, Auckland

DO SANTOS v R [2024] NZHC 2480 [30 August 2024]

Introduction

[1]Mr Do Santos pleaded guilty to 11 charges made up of:

(a)three charges of burglary;1

(b)four charges of driving whilst disqualified, three of those in the aggravated form of third and subsequent;2

(c)one charge of theft (under $500);3 and

(d)three charges of failing to answer District Court bail.4

[2] On 27 May 2024, he was sentenced by Judge P J Sinclair to nine months’ home detention and 80 hours’ community work in lieu of disqualification from driving.5

[3] Mr Do Santos appeals his sentence on the basis that nine months’ home detention is manifestly excessive.

The facts

[4] On 20 February 2022, Mr Do Santos and an accomplice went to a construction site in Grey Lynn. They forced their way through a section of fencing surrounding the property and uplifted five pieces of plywood. They placed the plywood into their van and drove off. The plywood belonged to Ockham Construction and was valued at
$400. This formed the basis of the theft charge.

1      Crimes Act 1961, s 231: maximum penalty of ten years’ imprisonment. One of the charges was representative.
2      Land Transport Act 1998, s 32: maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 for a first or second offence and maximum penalty of six month’s imprisonment or a fine not exceeding $6,000 for a third or subsequent offence. The Court also must order the person to be disqualified from driving for at least six months for a first or second offence and at least one year for a third or subsequent offence.
3      Crimes Act, ss 219 and 223: maximum penalty of three months’ imprisonment.
4      Bail Act 2000, s 38: maximum penalty of one year imprisonment or a fine not exceeding $2,000.
5      R v Do Santos [2024] NZDC 12383.

[5] On 19 March 2022, Mr Do Santos and an accomplice hired a white Ford Transit Box Truck. They drove it to a construction site in Orewa. Mr Do Santos entered the fully fenced site and stole GIB board to a value of $7,000 from the garage area on the property and loaded it into the truck.

[6] A representative charge resulted from conduct between 19 and 22 March 2022. During this time Mr Do Santos visited two additional construction sites in Orewa surrounded by temporary fencing. Mr Do Santos gained access to the sites and removed GIB plasterboard and timber. The stolen items had a combined value of
$34,903.

[7] Finally, at approximately 3.30…

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 Do Santos v The King

Details

AGLC: Do Santos v The King [2024] NZHC 2480
Case: [2024] NZHC 2480
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Do Santos v The King involves an appeal by Daniel Do Santos against his sentence imposed by Judge P J Sinclair. Mr. Do Santos was convicted of multiple charges including burglary, driving while disqualified, theft, and failing to answer District Court bail. He was sentenced to nine months’ home detention and 80 hours’ community work instead of being disqualified from driving. The appeal challenges the appropriateness of the nine-month home detention sentence.

The legal issues before the court were whether the sentence imposed was manifestly excessive and if the Judge erred in the discounts given for personal circumstances, time spent on electronic monitoring (EM) bail, and cooperation with police in an unrelated prosecution. Additionally, the court examined if the uplift for the driving while disqualified charges and the imposition of community work under the Land Transport Act 1998 were appropriate.

The court found that while the Judge had considered the mitigating factors, including Mr. Do Santos's personal circumstances, time spent on EM bail, and his cooperation with police, the sentence was within the acceptable range. The court noted that the discounts given, including a 20% reduction for personal circumstances and a 15% discount for the guilty plea, were sufficient. The imposition of a community sentence in lieu of disqualification from driving was also deemed appropriate under the Land Transport Act. Consequently, the appeal was dismissed as the sentence was not manifestly excessive.

Orders