Fisher v The Queen - [2021] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000110

[2021] NZHC 2602

BETWEEN
JUSTIN TIAKI FISHER

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 September 2021

Appearances:

P F Johnson for Appellant S J Mallett for Crown

Judgment:

30 September 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1] Mr Justin Fisher was sentenced1 to 17 months’ imprisonment by Judge Gilbert on one charge of burglary,2 one charge of receiving3 and one charge of failing to comply with obligations under the Search and Surveillance Act 2012.4

1      R v Fisher [2021] NZDC 14645.
2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3      Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
4      Search and Surveillance Act 2012, ss 130(1) and 178; maximum penalty three months’ imprisonment.

FISHER v R [2021] NZHC 2602 [30 September 2021]

[2] Mr Fisher appeals that sentence. He says the Judge erred in not commuting the sentence of imprisonment to home detention.

Background

[3] At about 5:15 am on 3 August 2020, Mr Fisher and an associate were at the Hawarden Four Square supermarket. Together they attempted to jemmy the front door using a crow bar. They were unsuccessful, so they climbed the fence at the rear of the supermarket and, using the crow bar, they removed a large sliding door from its rails and entered the supermarket. Mr Fisher made his way to the cigarette cabinet and attempted to open it. He failed and left the supermarket empty handed.

[4] Between 2 and 4 August Mr Fisher’s associate arrived at his address with a plastic tub containing various power tools. These had been stolen in a burglary in Leithfield overnight on 1 August.

[5] On the morning of 4 August, Mr Fisher’s associate arrived at Mr Fisher’s address with several firearms of various calibres, ammunition, shearing equipment and a Husqvarna chainsaw. Those items were stolen from a burglary committed on 3 August 2020. Mr Fisher helped the associate hide the firearms under a mattress in a caravan on Mr Fisher’s property. At about 12:50 pm the same day police executed a search warrant at Mr Fisher’s address and located all the items. Mr Fisher stated he was aware the property was stolen because his associate “steals everything”, and he had told the associate he did not want the stolen property at his home.

[6] Police seized Mr Fisher’s cell phone for further investigation. He was given the opportunity to provide his pin number/ passcode to police. He was warned that failure to provide it constituted an offence. Mr Fisher withheld his pin number/ passcode from police.

[7] Mr Fisher’s explanation for the offending was that his associate showed up at his address needing somewhere to stay. He told the pre-sentence report writer he and his partner told the associate…

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 Fisher v The Queen

Details

AGLC: Fisher v The Queen [2021] NZHC 2602
Case: [2021] NZHC 2602
Decision Date: 30 September 2021

CaseChat Overview and Summary

Justin Fisher appealed against his sentence of 17 months' imprisonment for burglary, receiving stolen property, and failing to comply with obligations under the Search and Surveillance Act 2012. The appeal centred on whether the sentencing judge erred in not commuting the sentence to home detention. Fisher argued that the judge placed excessive weight on his breach of post-detention conditions and did not sufficiently consider cases where home detention was imposed. The Crown maintained that the judge correctly exercised his discretion based on the information available.

The court found that the judge was justified in giving significant weight to Fisher's breach of post-detention conditions, as Fisher reoffended shortly after being released from electronic monitoring. The court also found no error in the judge not considering similar cases where home detention was imposed, as no such cases were presented to the court. The judge appropriately prioritised deterrence given Fisher's history of reoffending despite previous sentences of home detention. The court held that Fisher's personal circumstances, while relevant, were not sufficient to outweigh the need for deterrence and denunciation in this case.

Ultimately, the court found no demonstrable error in the judge's decision and dismissed the appeal. The sentence of 17 months' imprisonment was upheld.

Orders