This judgment was delivered by me on 2 October 2015 at 11.30am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….

Solicitors:
Crown Solicitor, Hamilton

Counsel:
W N Dollimore, Barrister Hamilton

FRANKLIN v THE POLICE [2015] NZHC 2406 [2 October 2015]

[1] The appellant, Keri Franklin, pleaded guilty in the District Court and was sentenced on a charge of theft of a television. He was also re-sentenced on two shoplifting offences, possessing needle/syringe for cannabis and possessing a cannabis plant. The total sentence imposed was 13 months’ imprisonment. He appeals on the basis that the sentence was manifestly excessive.

Background

Summary of Facts

[2] The summary of facts states that at approximately 12:45 pm on 26 June 2015

Mr Franklin and an associate entered a Dick Smith store in Hamilton and approached the television display area. Mr Franklin picked up a television, valued at $699. Mr Franklin and his associate left the store via the front entrance of the store.

Prior offending for which Mr Franklin was re-sentenced

[3] At the time of the present offending, Mr Franklin was serving a sentence of

90 hours community work for the drug related and shoplifting offences referred to above.

[4] The two drug charges related to an incident on 13 April 2015. Police were speaking to Mr Franklin at his home address. Police located a cannabis bong beside the couch in the living room. Police invoked the Search and Surveillance Act 2012 and detained Mr Franklin. They searched the property, locating a plate containing chopped up cannabis leaf, which had been prepared to be smoked.

[5] The two shoplifting charges arose out of incidents on 22 February 2015. Mr Franklin was observed on CCTV uplifting a “trade flame” blow torch kit valued at $69.00 from a Bunnings store in Cambridge. He left the store without paying for the item and left in a vehicle. Police were called to Bunnings.

[6] Mr Franklin then went to a Countdown Supermarket and concealed nine packets of meat, which had a total value of $128.50, on his person. He exited the

store making no attempt to pay for the items. He returned to his vehicle in the car park. Police observed the vehicle, searched it and located the items.

[7] Mr Franklin has an extensive criminal history which primarily consists of shoplifting, theft and burglary offending. He also has convictions for receiving and several convictions for wilful damage and assault.

Sentencing in the District Court

[8] Mr Franklin appeared before Judge Burnett in the Hamilton District Court on

28 July 2015. The Judge noted that the maxim penalty for the charge of theft was 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 Franklin v Police

Details

AGLC: Franklin v Police [2015] NZHC 2406
Case: [2015] NZHC 2406
Decision Date: 2 October 2015

CaseChat Overview and Summary

The appeal was brought by Keri Franklin against the sentence imposed by the District Court, which was 13 months' imprisonment for theft and the re-sentencing on two shoplifting offences, possessing a needle/syringe for cannabis and possessing a cannabis plant. Franklin argued that the sentence was manifestly excessive, the sentence hearing was unfair, and the uplift for previous convictions was too high. The High Court found that the sentence was indeed manifestly excessive, and the uplift for previous convictions was inappropriate. The Court concluded that an uplift of not more than four months, or two thirds of the starting point, would be appropriate. The Court also considered that the appellant's genuine remorse should be taken into account separately from a discount from a guilty plea. The Court set aside the sentence imposed in the District Court and imposed a sentence of eight months and one week's imprisonment, with the community work sentence suspended for the duration of the present sentence of imprisonment.

Orders