Elsmore v Police - [2013] NZHC 1849

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-00006

CRI-416-2012-00007 [2013] NZHC 1849

BETWEEN SHAWN ELSMORE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 July 2013

Appearances: L H Maynard for Appellant
K Laurenson for Respondent

Judgment: 24 July 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 24 July 2013 at 2pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Burnard Bull & Co., Gisborne
Crown Solicitor, Napier

ELSMORE v POLICE [2013] NZHC 1849 [24 July 2013]

[1] On 14 November 2012, after a summary hearing over the preceding two days in the District Court, Gisborne, Shawn Elsmore and his uncle, Brian Middleton, were each convicted of four thefts of 122 lambs and a ram in January - February 2012. They admitted a further theft of 10 lambs on 7 February 2012. The stock they stole together was worth $27,000. Mr Middleton was also convicted of stealing in early January 2012 nine ewes and 13 lambs, worth $4,500.

[2] On 18 February 2013 the trial Judge, Judge Tompkins, sentenced Mr Elsmore and Mr Middleton to imprisonment for 18 months; a sentence called for, he said, because of the scale of their thefts, the system they brought to it, the ease with which they were able to offend, the difficulty entailed in detecting and prosecuting their offending, and the effect on their victims and the wider community. The principles of denunciation and deterrence, he held, ruled out in their cases a sentence of home detention.

[3] On this appeal Mr Elsmore, who has now served five months of his sentence, appeals his two principal convictions, contending that they are unsupported by the evidence on which the Judge relied and that at most he was culpable of receiving. In any event, he contends, those two convictions encompass stock that could not be linked to him on the evidence and that stock ought to be excised by amending the charges on which those convictions were entered.

[4] Mr Elsmore also appeals his sentence as manifestly excessive. First, he contends, he did no more than assist Mr Middleton, the primary offender on the evidence, and the Judge was wrong to equate them. Secondly, he contends, the Judge was wrong to rule out a sentence of home detention, especially without obtaining a pre-sentence report evaluating that possibility. That sentence, in his case, he contends, was capable of serving adequately the purposes of denunciation and deterrence. It was the least restrictive proper sentence.

Offending

[5] In early 2012 there was a spate of lamb thefts from farms close to Gisborne. Between 1 - 13 January nine ewes and 13 lambs were stolen from Integrated Foods, which owns a block of land bordering Otara Station, from which 110 lambs were

also stolen between 1 January - 12 February 2012. Eleven lambs were stolen from Whangara Farm between 27 January - 12 February 2012. A ram was stolen from Albert Waikari between 30 January - 1 February 2012…

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 Elsmore v Police

Details

AGLC: Elsmore v Police [2013] NZHC 1849
Case: [2013] NZHC 1849
Decision Date: 24 July 2013

CaseChat Overview and Summary

Shawn Elsmore appeals his convictions and sentences for his involvement in the theft of various lambs and a ram from different farms in the Gisborne region. He contends that his convictions are unsupported by the evidence and that the sentence imposed on him is excessive. The appeal was heard by Keane J in the High Court of New Zealand. The primary issues in the appeal were whether the convictions were supported by the evidence and whether the sentence imposed was the least restrictive proper sentence. Keane J found that the convictions were supported by the evidence, as the doctrine of recent possession and circumstantial evidence was sufficient to establish Elsmore's involvement in the thefts. However, Keane J found that the sentence imposed was excessive and should be substituted with a sentence of home detention, as the purposes of denunciation and deterrence could be achieved through a less restrictive sentence. As a result, Elsmore's sentence of imprisonment is quashed, and he is to be sentenced to four months of home detention with specific conditions.

Final orders: The appeal against conviction is dismissed. The appeal against sentence is allowed, and the sentence of imprisonment is quashed. Elsmore is to be sentenced to four months of home detention with the specified conditions.

Orders