Drinkwater v The Queen - [2012] NZCA 592

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 546/2012
[2012] NZCA 592

BETWEEN LINDSEY ALLAN DRINKWATER
Appellant

AND THE QUEEN
Respondent

Hearing: 20 November 2012

Court: Wild, Chisholm and Courtney JJ

Counsel: P M Keegan for Appellant
K A L Bicknell for Respondent

Judgment: 17 December 2012 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentences under appeal are quashed.
CA sentence of six months’ home detention, commencing on 24 August 2012, on the special conditions set out in [49] of this judgment, is substituted.
DLeave to apply for any further directions required in respect of the substituted sentence is reserved to both the appellant and the respondent.
ECounsel for the appellant is directed to ensure that the appellant receives a copy of this judgment.

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REASONS OF THE COURT
(Given by Wild J)

Introduction

Asserting they are unfair and manifestly excessive, Mr Drinkwater appeals cumulative sentences totalling two years and nine months’ imprisonment imposed on him by Judge Roberts in the New Plymouth District Court on 24 August 2012.[1]
[1] R v Drinkwater DC New Plymouth CRI-2011-043-2136, 24 August 2012.
Mr Drinkwater had pleaded guilty to charges of:
(a)unlawfully taking a trailer;
(b)burglary – breaking into a shed at a residential property with intent to commit a crime;
(c)unlawful possession of a firearm; and
(d)discharging a firearm with reckless disregard for the safety of others.
The two dishonesty charges arose out of a first incident, the firearms charges out of a second, related incident the following day.

Factual background

What follows is a minimal account of the factual background. It differs somewhat from the Judge’s view of what happened. We elaborate on the circumstances of the offending later in the judgment.
Mr Drinkwater and his former partner, Ms Kelly Waiariki, owned a Harley Davidson motorbike. After Ms Waiariki and Mr Drinkwater split up, the motorbike

[2]Ms Waiariki’s version is set out in an unsigned formal statement she made to the police, pursuant to s 162 of the Summary Proceedings Act 1957. Essentially, Ms Waiariki claimed she had put the motorbike into Mr Toa’s hands for repair, so she and Mr Drinkwater could sell it, after they separated. Mr Drinkwater’s version is recorded at pp 4–9 of the transcript of a second emergency call he made to the police on 8 July 2011. He told the police that he had ridden the Harley Davidson to a party at the home of Mr Toa’s daughter Roxanne about three or four months earlier. He had been attacked by a number of people at the party and forced to leave without the bike. He had said “and then when I went back the next morning to get my bike it was gone”.
ended up in the hands of a Mr Dave Toa. Ms Waiariki has given one version of how that happened, Mr Drinkwater another.[2] It matters not which version is correct, because both Ms Waiariki and Mr Drinkwater agree that they, and not Mr Toa, owned the…

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 Drinkwater v The Queen

Details

AGLC: Drinkwater v The Queen [2012] NZCA 592
Case: [2012] NZCA 592
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appellant, Mr Lindsey Allan Drinkwater, appeals against the sentences imposed by Judge Roberts in the New Plymouth District Court. Mr Drinkwater had pleaded guilty to charges of unlawfully taking a trailer, burglary, unlawful possession of a firearm, and discharging a firearm with reckless disregard for the safety of others. The appeal contends that the cumulative sentences of two years and nine months’ imprisonment are unfair and manifestly excessive. The Court of Appeal, consisting of Wild, Chisholm, and Courtney JJ, allowed the appeal, quashed the sentences, and substituted a sentence of six months’ home detention on special conditions. The appeal centred on whether the sentences imposed were manifestly excessive, given the possibility that Mr Drinkwater may have had defences to the charges, particularly the firearms charges. The Court of Appeal considered several factors, including the lesser culpability involved in the burglary charge, the possibility of self-defence or defence of a dwelling house, and the fact that Mr Drinkwater had already spent over five months in custody. The Court substituted a sentence of six months’ home detention, to run concurrently on the burglary and firearms charges, with special conditions including abstention from alcohol and illicit drugs and direct travel to a specified address upon release from prison.

Orders