Fielding v The Queen - [2021] NZHC 2753

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-441-22

[2021] NZHC 2753

BETWEEN
GRAEME PRICE FIELDING

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 October 2021 (by AVL)

Appearances:

S Yee for Appellant

J Eng and H Cunningham for Respondent

Judgment:

14 October 2021

JUDGMENT OF ISAC J

Introduction

[1] Mr Fielding was sentenced to two years and eight months’ imprisonment on a charge of burglary. He now appeals that sentence.

The offending

[2] On the 27 April 2020, Mr Fielding was at home with his partner, who was also the co-offender. They lived in a block of four flats.

[3]The victim lived on her own in an adjacent flat.

[4] Mr Fielding and his partner saw the victim leave her home at approximately 8 pm. It appeared she was going away overnight.

FIELDING v R [2021] NZHC 2753 [14 October 2021]

[5] After she had left Mr Fielding gained entry to the victim’s flat through an insecure window. Once inside he searched every room. He pulled out all the drawers and emptied their contents onto the floor. He did the same with cupboards. Clothing and personal items were strewn across the floors throughout the flat.

[6] Mr Fielding’s partner remained outside and helped transport items of value into their flat, and assisted Mr Fielding to dispose of items later.

[7]The belongings stolen included cosmetics, medicines, cash (approximate

$1300), credit cards, passports, alcohol, presents, some clothing, and personal papers from throughout the home. The victim’s entire jewellery drawer was taken. It contained a large amount of jewellery and related items, including medals which had belonged to the victim’s grandfather. It included a valuable collection of rings inherited from the victim’s grandmother. Several pearl necklaces, crystals and pounamu pieces were also taken.

[8] Other items taken included a 42-inch television, two laptops, old cell phones, headphones and spare keys.

[9] The victim returned to her home on Tuesday 28 April. Mr Fielding approached her and tried to speak with her before she gained entry to her home. The summary of facts described his behaviour as “agitated, fidgeting and pacing”. Once she gained entry the victim discovered the burglary and called the Police.

[10] A limited number of items were recovered but not, it seems, any items of sentimental or financial value. The value of the property taken was at least $30,000. The victim was uninsured.

District Court judgment

[11] After outlining the relevant facts, the Judge noted Mr Fielding had a lengthy list of previous convictions including seven for burglary.1 He noted that, as far as the community is concerned, the one offence New Zealanders “really have just completely

1 R v Fielding [2021] NZDC 14887 at [11].

tried of” is having their homes broken into and coming home and seeing their homes not only trashed, but all items of value and of sentimental value have been taken.2 The Judge then referred to the Court of Appeal’s decision in Arahanga v R

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 Fielding v The Queen

Details

AGLC: Fielding v The Queen [2021] NZHC 2753
Case: [2021] NZHC 2753
Decision Date: 14 October 2021

CaseChat Overview and Summary

Graeme Price Fielding appeals his sentence for a burglary offence, arguing that the sentence imposed was excessive and that various errors were made in the sentencing process. The appeal was heard in the High Court of New Zealand, Wellington Registry. The primary issues for the court were whether the starting point and uplift for previous convictions were appropriate, whether the sentence adequately considered mitigating factors, and whether the sentence imposed was manifestly excessive. The court found that the starting point and uplift were within the appropriate range, given the nature and value of the stolen property and the defendant's criminal history. The court also concluded that a discount to reflect the defendant's deprived upbringing and addiction was appropriate, which was not adequately considered at the original sentencing. The appeal was allowed, and a new sentence of 26 months’ imprisonment was imposed, incorporating the appropriate discounts and uplifts.

Orders