Gardiner v Police - [2015] NZHC 1241

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-14 [2015] NZHC 1241

BETWEEN
CHAD JESSIE GARDINER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 June 2015

Appearances:

M Boyd for Mr Gardiner
N Laird for the Respondent

Judgment:

4 June 2015

JUDGMENT OF MALLON J

Introduction

[1] Mr Gardiner was convicted on three counts of burglary,1 one count of receiving stolen property,2 one count of failure to report for community work,3 and one count of non-payment of fines.4 He was sentenced in the District Court at New Plymouth to an effective term of two years imprisonment.5 He appeals against his sentence. He contends that there were errors in the sentencing6 that led to a sentence that was manifestly excessive.7

The offending

[2] On 15 January 2015 Mr Gardiner was sentenced to 80 hours of community work. He failed to report within 72 hours of his sentence being imposed. Despite a

1      Crimes Act 1961, s 231 (maximum penalty of 10 years imprisonment).
2      Sections 246(1) and 247(c) (maximum penalty of three months imprisonment).
3      Sentencing Act 2002, s 71(1)(a) (maximum penalty of three months imprisonment or a fine not exceeding $1,000).
4      Summary Proceedings Act 1957, s 90(b) (maximum penalty of three months imprisonment).
5      Police v Gardiner [2015] NZDC 4158 (Judge C Sygrove).
6      Criminal Procedure Act 2011, s 250.
7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

GARDINER v NEW ZEALAND POLICE [2015] NZHC 1241 [4 June 2015]

number of written instructions and warnings to report he failed to do so. He has not completed any hours of this sentence.

[3] At 6.25 pm on 6 February 2015, Mr Gardiner entered a lane in New Plymouth which services several businesses. A CCTV camera is installed in the lane. Mr Gardiner entered the rear of a takeaway shop through a closed gate. He took some food items from the chiller. The items were valued at $45. He returned at
6.44 pm and re-entered the takeaway shop in the same way. He took a small red bucket with unidentified contents.8 He returned again at 9 pm, this time on a stolen mountain bike.9 He walked into the rear of a café, which was next to the takeaway shop he had earlier entered, and grabbed two containers of food and a bottle of juice. These items were valued at $135.10 The owner of the café noticed the chiller door open and confronted Mr Gardiner, who said that he was hungry. The owner gave Mr Gardiner some food and escorted him out of the café.

[4] Mr Gardiner was located and arrested on 12 February 2015. The charges were brought on 13 February 2015. Bail was not sought. Mr Gardiner entered early guilty pleas.

Circumstances of the offender

[5] At the time of the offending, Mr Gardiner was 20 years old, an alcoholic and of no fixed abode. He had not applied for a benefit and did not have a bank account or a…

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.

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Details

Case: [2015] NZHC 1241
Decision Date: 4 June 2015

CaseChat Overview and Summary

The appeal by Chad Jessie Gardiner against his sentence for multiple charges of burglary, receiving stolen property, failure to report for community work, and non-payment of fines was heard by Mallon J in the High Court of New Zealand. The court had to determine whether the District Court's sentencing was flawed, leading to an excessive sentence. The legal issues revolved around the appropriate starting point for the sentence and the justification for any uplift in the sentence due to aggravating factors. Mallon J found that the District Court had erred by treating the case as a tariff case and by applying an unjustifiable uplift of eight months. The court held that the circumstances of the offending warranted a starting point of no more than eight months imprisonment and an uplift of no more than two months for previous offending and other charges. The appeal was allowed, and the sentences on the burglary charges were quashed, with concurrent sentences of seven months imprisonment substituted. Special conditions were set for Gardiner's release, including mandatory alcohol assessment and treatment if required.

The final orders of the court were that the sentences on the burglary charges were quashed and replaced with concurrent sentences of seven months imprisonment, with the special release conditions applied for six months. The existing sentences on the charges of receiving, breach of community work, and non-payment of fines remained in place, and the order cancelling the community work sentence also remained unchanged. The decision underscored the importance of correctly assessing the circumstances of the offending and applying appropriate uplifts based on aggravating factors.

Orders