Felts v Police - [2023] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-232

[2023] NZHC 1612

BETWEEN
MARK WILLIAM FELTS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 June 2023

Appearances:

M Taylor-Cyphers for the Appellant O Southern for the Respondent

Judgment:

27 June 2023

JUDGMENT OF GORDON J

This judgment was delivered by me on 27 June 2023 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Crown Solicitor, Manukau
M Taylor-Cypers, Barrister, Auckland

FELTS v NEW ZEALAND POLICE [2023] NZHC 1612 [27 June 2023]

Introduction

[1] The appellant, Mark Felts, pleaded guilty to one charge of unlawfully getting into a motor vehicle,1 one charge of burglary,2 and one charge of failing to carry out obligations in relation to a computer search.3

[2] On 23 March 2023, Mr Felts was sentenced by Judge T V Clark at the Manukau District Court to 20.5 months’ imprisonment on the burglary charge with concurrent shorter sentences on the other two charges.4

[3] Mr Felts now appeals his sentence on the basis that the Judge erred in failing to follow the sentencing methodology prescribed under Moses v R5 and imposed an uplift for prior convictions after applying discounts for personal mitigating factors. As part of that ground of appeal, it is argued that the uplift for prior convictions should occur at step one of the two-step Moses methodology. Mr Felts also says that a greater discount for personal mitigating factors should have been given at the second step. As well, Mr Felts says his sentence of imprisonment should have been converted to an electronically monitored sentence at a full-time residential rehabilitative facility.

[4] The respondent opposes the appeal on the basis that the Judge did not err in her application of Moses, either in methodology or in calculation; nor did the Judge err in the uplifts or discounts applied because she took a holistic approach to sentencing. The respondent also says the Judge was correct to conclude that a sentence of home detention could not adequately meet the purposes and principles of sentencing in this case.

1      Crimes Act 1961, s 226(2). Maximum penalty: two years’ imprisonment.
2      Section 231(1)(a). Maximum penalty: 10 years’ imprisonment.
3      Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
4      New Zealand Police v Felts [2023] NZDC 5879.
5      Moses v R [2020] NZCA 296; [2020] 3 NZLR 583.

The offending

Unlawfully getting into a motor vehicle

[5] On 15 December 2022, the victim’s vehicle was taken from an Auckland city address. On the same day, registration plates were also taken from a vehicle parked at an Auckland city address.

[6] On 21 December 2022, Police located the victim’s vehicle displaying the registration plates taken from the second vehicle. As Mr Felts was walking to the vehicle he noticed Police and quickly turned away walking back into the mall. Mr Felts was located in the mall and arrested by Police.

[7] Upon arrest, Police located the keys for…

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 Felts v Police

Details

AGLC: Felts v Police [2023] NZHC 1612
Case: [2023] NZHC 1612
Decision Date: 27 June 2023

CaseChat Overview and Summary

Mark William Felts appealed his sentence for unlawfully getting into a motor vehicle, burglary, and failing to assist with a computer search, arguing that the Judge erred in sentencing methodology, the amount of uplifts and discounts applied, and in failing to impose an electronically monitored sentence at a residential rehabilitative facility. The appeal was dismissed. The Judge was not in error in methodology; the uplift for prior convictions should occur at step two of the Moses methodology, not step one. The four-month uplift for prior convictions was generous given Mr Felts' extensive criminal history. The 20 per cent discount for personal mitigating factors was within range. The Judge appropriately balanced the statutory requirements of denunciation and deterrence with Mr Felts' rehabilitative needs in deciding not to impose a sentence of home detention.

Orders