Drake v Police - [2015] NZHC 2252

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2015-418-000005 [2015] NZHC 2252

BETWEEN
BRETT JAMES DRAKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 September 2015

Appearances:

M Zintl for Appellant
C Butchard for Crown

Judgment:

17 September 2015

JUDGMENT OF GENDALL J

DRAKE v NZ POLICE [2015] NZHC 2252 [17 September 2015]

The appeal

[1] On 7 July 2015 Mr Brett Drake was sentenced to 19 months’ imprisonment.1

The sentence related to receiving a motor vehicle, possession of a Class A drug, possession of a Class C drug, three charges of wilful damage, and one charge of theft. Mr Drake now appeals against this sentence on the basis it is manifestly excessive, which is said to arise through an excessive starting point, excessive uplifts and insufficient discounts.

[2] The appeal was filed out of time. The Crown does not oppose the appeal being heard out of time. I grant leave accordingly.

Jurisdiction

[3] Mr Drake is able to appeal his sentence as of right. But to succeed he not only must establish an error, but also that a different sentence should be imposed. The fundamental touchstone is therefore not whether this Court would have imposed a different sentence at first instance, but whether the sentence imposed was within the range available.

Facts

Receiving

[4] On 11 November 2014 a Subaru motor vehicle worth $11,000 was stolen from Christchurch. Sometime between the date of the theft and 4 May 2015, Mr Drake took possession of the vehicle. The number plates had been changed and Police were unaware it had been stolen at the time. On 7 May 2015, a member of the public alerted Police to the fact that the stolen vehicle was at an address is
Greymouth.

1 New Zealand Police v Drake [2015] NZDC 13461 [DC Sentencing Notes].

Theft

[5] On 2 March 2015 Mr Drake filled his vehicle with petrol at Greymouth. He went inside, handed over a fuel card, and said he would return to pay. He did not. The fuel worth $109.54 led to the charge of theft.

Drug offending (x2) and two charges of wilful damage

[6] On 18 March 2015 Police attended a domestic incident at a victim’s address in Greymouth. Mr Drake was there and he had become abusive and threatening towards the victim when asked to leave the address. The victim phoned Police. While the victim did so, Mr Drake pushed a lit cigarette into the sofa, melting it. He then left the premises, during which process he smashed the left wing mirror of the victim’s vehicle. Before the Police arrived, he had taken his belongings and secreted them away in the neighbour’s garage. This property was recovered by Police upon their attendance and subsequent arrest.

[7] The recovered property was taken to the Greymouth Police station. In the course of itemising this property, 13 pills and a total of 29.13 grams of cannabis were located.

Wilful damage

[8] On 20 May 2015, Mr Drake was remanded in…

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 Drake v Police

Details

AGLC: Drake v Police [2015] NZHC 2252
Case: [2015] NZHC 2252
Decision Date: 17 September 2015

CaseChat Overview and Summary

Brett James Drake appeals against his sentence of 19 months' imprisonment, imposed by the District Court for receiving a stolen vehicle, possession of drugs, wilful damage, and theft. The appeal was filed out of time, but the Crown did not oppose it being heard. The court granted leave to hear the appeal out of time. The appeal hinges on whether the sentence was manifestly excessive, specifically through an excessive starting point, excessive uplifts, and insufficient discounts.

The court found that the starting point of 15 months' imprisonment for receiving the stolen vehicle was within the available range, considering the gravity of the offence. The court also upheld the uplifts applied for previous offending, noting that Mr Drake's criminal history justified a need for deterrence and denunciation. Regarding the discount for a guilty plea, the court found no entitlement to a specific quantum, and the discount applied was near the maximum.

The court concluded that the sentence of 19 months' imprisonment was within the range available and appropriate in all circumstances. The appeal was dismissed.

Orders