[1] On 14 August 2015 the appellant, Mr Shannon French was sentenced by His Honour Judge Garland in the Christchurch District Court on one charge of burglary1 and one charge of receiving (over $1000)2 to which he pleaded guilty.3
Judge Garland sentenced Mr French to two years and 11 months imprisonment. Mr French now appeals that sentence.

Background facts to the offending

[2] On 19 May 2015, Mr French, with an associate, entered the grounds of Christchurch Boys High School. They proceeded to climb over the gate to the students secure bike lock up. The appellant’s associate removed the victim’s mountain bike from the bike rack and wheeled it out of the school with the appellant.
Later that day the appellant and his associate went to Around Again Cycles in

1      Crimes Act 1961, s 231(1)(a).
2      Crimes Act 1961, ss 246 and 247(a).
3      Police v French [2015] NZDC 16162.

FRENCH v NEW ZEALAND POLICE [2015] NZHC 2635 [27 October 2015]

Christchurch where Mr French sold the mountain bike for $270. In explanation, Mr French claimed that his associate owed him $50. This offending resulted in the receiving charge.

[3] On 22 May 2015, between the hours of 10am and 12pm, Mr French entered a property on Remuera Avenue, Christchurch. He used a shovel to jemmy open a window. Having gained entry, he targeted and took 12 items of jewellery belonging to the victim, estimated to have a value of $1,340. In explanation, Mr French simply stated that he did not know how his fingerprints would have been found as he usually wears gloves. He sold the jewellery at a jewellers shop in Papanui. This offending resulted in the burglary charge.

District Court sentencing

[4] In the District Court, Judge Garland took the burglary as the lead charge. Having regard to the factors relating to the offending, His Honour took a starting point of two years’ imprisonment. This was then uplifted by nine months to reflect the receiving charge. Turning to consider personal aggravating and mitigating factors, the Judge had regard to Mr French’s extensive history of similar offending, as well as the fact that the most recent offending was committed while the appellant was on parole. An uplift of 12 months imprisonment was imposed before a
10 month discount was applied for an early guilty plea. This discount, on my calculation, amounted to 22 per cent.

[5] Judge Garland imposed a final end sentence of two years and 11 months’ imprisonment on the burglary charge and a concurrent nine month sentence on the receiving charge.

Submissions

[6] The appeal before me is advanced on the following grounds:

(a) the uplift of nine months imprisonment for the receiving charge…

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 French v Police

Details

AGLC: French v Police [2015] NZHC 2635
Case: [2015] NZHC 2635
Decision Date: 27 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Shannon Del French, the appellant, appealed against the sentence imposed by the Christchurch District Court. The District Court sentenced French to two years and 11 months imprisonment for one charge of burglary and one charge of receiving (over $1000). French argued that the uplift of nine months for the receiving charge was too high, the uplift for previous offences and offending on release conditions was disproportionately high, the credit given for the guilty pleas and other mitigating factors was insufficient, and the end sentence was manifestly excessive. The court was required to decide whether there was an error in the sentence imposed on conviction and whether a different sentence should be imposed.

The court considered the burglary as the lead charge and took a starting point of 20 months' imprisonment, which was then uplifted by 12 months for recidivism and two months for offending on release conditions, resulting in an adjusted starting point of 34 months. The court adopted a cumulative approach to sentencing the receiving charge and set a starting point of 14 months, which resulted in a total sentence before discounts of 48 months. After applying a 25 per cent discount for the guilty plea and remorse, the court arrived at a total sentence of 36 months or three years. The court found that the total sentence scarcely violated the principle of totality and dismissed the appeal. The final orders of the court were not stated in the text.

Orders