Fearn v The King - [2024] NZHC 3389

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2024-418-10

CRI-2024-418-11 [2024] NZHC 3389

BETWEEN
TIMOTHY ROBERT FEARN

Appellant

AND

THE KING

Respondent

Hearing: 13 November 2024

Appearances:

A M S Williams and K N Stitely for Appellant M W Fulton for Respondent

Judgment:

14 November 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FEARN v R [2024] NZHC 3389 [14 November 2024]

Introduction

[1] Timothy Fearn pleaded guilty to four charges of burglary (one representative),1 a charge of receiving,2 two charges of possessing a utensil,3 a charge of possessing a Class C controlled drug,4 a charge of supplying and offering to supply a Class A controlled drug (representative),5 and a charge of unlawfully possessing a firearm.6 On 4 September 2024 he was sentenced by Judge D J Orchard to eight years and six months’ imprisonment.

[2]Mr Fearn appeals his sentence on the ground it is manifestly excessive.

Facts

[3] The offending is set out in some detail in the sentencing decision.7 I record a summary here.

[4] The first summary of facts relates to one charge of burglary in August/September 2021, one charge of receiving stolen property over $1,000 during the same period, and one charge of possessing a utensil. The burglary charge related to Mr Fearn breaking into a holiday home and taking items valued at approximately
$60,000. The receiving charge related to 10 battery cells for a rail crossing.

[5] The second summary of facts relates to the remaining three burglary charges (in March 2023), one charge of possession of utensils, possession of a Class C controlled drug, and supplying and offering to supply a Class A controlled drug.

[6] At the first property, items to the value of around $60,000 were taken. At the second, the total value of property stolen was around $15,000. And at the third property, no property was stolen but $1,000 of damage was caused. These burglaries

1      Crimes Act 1961, s 231. Maximum penalty: 10 years’ imprisonment.
2      Crimes Act 1961, s 246 and 247(a). Maximum penalty: seven years’ imprisonment.
3      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty: one year’s imprisonment or a fine not exceeding $500.
4      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or a fine not exceeding $500.
5      Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty: life imprisonment.
6      Arms Act 1983, s 45(1)(b). Maximum penalty: four years’ imprisonment or a fine not exceeding
$5,000.
7      R v Fearn [2024] NZDC 23923.

occurred while Mr Fearn was on bail for burglary. The supplying and offering to supply a Class A controlled drug related to a search of Mr Fearn’s phone where police identified 48 instances of Mr Fearn arranging to supply or offering to supply methamphetamine between October 2022 and April 2023. Twenty-one…

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 Fearn v The King

Details

AGLC: Fearn v The King [2024] NZHC 3389
Case: [2024] NZHC 3389
Decision Date: 14 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Timothy Robert Fearn appealed against his sentence, arguing that it was manifestly excessive. Fearn was sentenced to eight years and six months' imprisonment following his guilty pleas to various charges, including burglary, receiving, and drug-related offenses. The High Court was tasked with determining whether the sentence imposed by the District Court was justified or if it required adjustment based on the applicable sentencing principles. The central legal issue was whether the sentence was manifestly excessive and whether a different sentence should be imposed.

The Court analyzed the starting points for each charge, finding that the Judge's starting point for the burglary charges was disproportionately high. The Court considered the factors surrounding the burglary offenses, including planning, property value, and damage caused, and concluded that a starting point of around five years was more appropriate. The Court also found the starting point for the receiving charge to be disproportionate, considering the value of the property received. The Court determined that a global starting point of eight years and ten months' imprisonment was excessive when considering the totality of the offending. After applying the totality principle and personal mitigating factors, the Court concluded that a sentence of six years and three months' imprisonment was appropriate.

The appeal was allowed, and the sentence was substituted with a total sentence of six years and three months' imprisonment. The Court confirmed the sentences for the drug and firearm charges while adjusting the sentences for the burglary and receiving charges accordingly.

Orders