Duncan v Police - [2013] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-0006 [2013] NZHC 1053

BETWEEN NATHAN AARON DUNCAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 May 2013

Counsel: B Farnan for Appellant
R D Smith for Respondent

Judgment: 10 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 May 2013 at 3.45pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Farnan Garthwaite Law, PO Box 1440, Dunedin
Crown Solicitor, PO Box 803, Dunedin

DUNCAN V NEW ZEALAND POLICE HC DUN CRI 2013-412-0006 [10 May 2013]

The appeal

[1] Mr Duncan appeals against an effective sentence of two years and six months imprisonment imposed following his guilty plea to six charges involving theft of a motor vehicle, unlawfully taking a motor vehicle, theft (from a vehicle) of property over $1000 and theft (from a vehicle) of property under $500 (x3).1

[2] Ms Farnan, for Mr Duncan, submits that the sentencing Judge adopted a starting point that was too high and also calculated an uplift which had the effect of double counting aggravating factors.

Facts

[3] In the period between September and December 2012, Mr Duncan engaged in the conduct that gave rise to the charges. While only 20 years of age, he had accumulated some 59 convictions in the District Court beforehand. Many of his convictions were for offences involving dishonesty, particularly theft of motor vehicles and taking property from them. Mr Duncan had also been dealt with in the Youth Court on similar charges.

[4] Following the entry of guilty pleas Mr Duncan came up for sentence before Judge Flatley on 7 February 2013, in the District Court at Dunedin. The Judge expressed understandable concerns about Mr Duncan’s prior criminal history, particularly those involving property offending. He described that history as
“appalling” and “extremely relevant ... [to] this type of offending”.2

[5] The Judge summarised the nature of the offending:

[4] As far as the facts are concerned, the unlawfully taking the motor vehicle and theft of items from the motor vehicle relates to the Toyota van. It contained personal effects and equipment used by the owner in her work as a gardener. You took the van. You then disposed of a number of items from the van, lawn mower, weed eater, chainsaw, hedge cutter and other items. Then you emptied the rest of the victim’s belongings onto your back

1 Police v Duncan DC Dunedin CRI 2012-012-4202, 7 February 2013 at para [3].
2 Ibid, at para [3].

yard. You then went to the New Zealand Post Shop and changed the ownership of the vehicle into your name and then you went to Otago Metal Industries and sold the van for $400.

[5] You were then confronted by the victim I am not quite sure how that happened but you were and you gave the cash back and you fled. The gardening equipment used by the owner in her business and other personal items, including the fishing rods, were…

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 Duncan v Police

Details

AGLC: Duncan v Police [2013] NZHC 1053
Case: [2013] NZHC 1053
Decision Date: 10 May 2013

CaseChat Overview and Summary

Nathan Aaron Duncan appealed against the effective sentence of two years and six months imprisonment imposed following his guilty plea to six charges involving theft of a motor vehicle, unlawfully taking a motor vehicle, theft (from a vehicle) of property over $1000 and theft (from a vehicle) of property under $500 (x3). Ms Farnan, for Mr Duncan, submitted that the sentencing Judge adopted a starting point that was too high and also calculated an uplift which had the effect of double counting aggravating factors.

Mr Duncan had accumulated 59 convictions in the District Court beforehand, many of which were for offences involving dishonesty, particularly theft of motor vehicles and taking property from them. The offending in this case involved the theft of two motor vehicles and various items of property from them, as well as three instances of theft from trucks. Mr Duncan was considered to be at very high risk of reoffending. The sentencing Judge expressed understandable concerns about Mr Duncan’s prior criminal history, particularly those involving property offending, and described that history as “appalling” and “extremely relevant” to the offending.

The Judge was alive to “difficulties” to which a pre-sentence report had referred. These included “early attention deficit, learning difficulties, impulsiveness and mood variability” exacerbated by “early onset of alcohol and substance abuse.” The Judge considered that imprisonment was inevitable and determined the appropriate sentence by assessing aggravating and mitigating features, and by applying the totality principle. The Judge determined a starting point of three and a half years’ imprisonment and increased that starting point by three months to reflect prior offending. The Judge then gave a credit of one third for the guilty plea, resulting in a total sentence of two years and six months imprisonment.

The appeal against sentence was dismissed. The court found that the starting point taken by the Judge was not excessive and that the credit for mitigating factors went considerably beyond what the Judge could have allowed in terms of Hessell v R. The end sentence of two years and six months imprisonment can properly be seen as an appropriate sentencing response to the totality of Mr Duncan’s offending.

Orders