Graham v Police - [2017] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000031

[2017] NZHC 442

IN THE MATTER OF an appeal against sentence

BETWEEN

ANDREW REX GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 March 2017

Counsel:

M B Meyrick for the Appellant L B T Belk for the Respondent

Judgment:

15 March 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 March 2017 at 11.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GRAHAM v POLICE [2017] NZHC 442 [15 March 2017]

Solicitors: Berman and Burton, Auckland
Kayes Fletcher Walker Limited, Auckland

Introduction

[1] Mr Graham pleaded guilty to 11 charges of dishonesty related offending and one charge of breach of bail. He was sentenced to 25 months’ imprisonment for that offending by Judge Hikaka on 5 October 2016 (October sentence).1

[2] On 30 November 2016, Mr Graham pleaded guilty to breaching a protection order and was sentenced to nine months’ imprisonment cumulative on the existing sentence (November sentence).2

[3] Mr Graham appeals both sentences. He challenges the October sentence on the grounds that the uplifts to take into account the totality of the offending and his previous convictions were too high and led to a manifestly unjust sentence.

[4] He appeals the November sentence on the grounds that the Judge failed to take into account the October sentence in determining an appropriate sentence.

The offending

[5]The October sentencing was for the following charges:

(a)Six charges of take/obtain/use credit bank credit card for pecuniary gain;3

(b)Theft ex car (over $1,000);4

(c)Theft ex car (under $500);5

1      New Zealand Police v Graham [2016] NZDC 19932.
2      R v Graham [2016] NZDC 24310.
3      Crimes Act 1961, s 228. Maximum penalty is seven years’ imprisonment.
4      Crimes Act 1961, s 223(b). Maximum penalty is seven years’ imprisonment.
5      Crimes Act 1961, s 223(d). Maximum penalty is three months’ imprisonment.

(d)Theft property (under $500);6

(e)Shoplifts (under $500);7

(f) Theft ($500 – $1,000);8 and

(g) Failure to answer District Court bail.9

[6] Only the summary of facts for five of these offences was located prior to the appeal hearing. The parties were nevertheless agreed that the appeal should proceed. The events giving rise to these charges are therefore taken from the summary of facts available, and the October sentencing notes.

[7] The dishonesty charges relate to thefts of a laptop, cellphones, a drill off a building site, a wallet and its contents, and groceries. There was also one instance where the complainant was at the emergency department at hospital and Mr Graham stole that person’s card and used it at least three times, obtaining a benefit of over
$600. Some of the thefts were from places of work, and the taking of property from behind shop counters. One of the charges involved smashing a window and stealing a laptop, causing approximately $2,600 worth of damage and loss.

[8] The November sentencing was for the thirteenth breach of a protection order. That order had…

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: [2017] NZHC 442
Decision Date: 15 March 2017

CaseChat Overview and Summary

In Graham v Police, the appellant, Mr Andrew Rex Graham, appealed both the October and November sentences imposed by the District Court. The October sentence involved 11 charges of dishonesty-related offending and one charge of breach of bail. The November sentence was for breaching a protection order. Mr Graham argued that the uplifts for the totality of the offending and his previous convictions in the October sentence were too high, leading to a manifestly unjust sentence. He also argued that the November sentence did not take into account the October sentence, resulting in an excessive penalty.

The High Court found that the starting point of 24 months for the October sentence was appropriate, given the nature and value of the stolen items, the pre-meditation involved, and the vulnerability of the victims. While the 12-month uplift for prior convictions was at the upper end of what might be considered appropriate, the overall sentence did not result in a manifestly excessive penalty. The appeal against the October sentence was dismissed.

Regarding the November sentence, the Court found that the District Court Judge failed to consider the total effect of the two sentences of imprisonment being served cumulatively, which violated the totality principle. The Court held that a cumulative sentence of three months’ imprisonment for the breach of the protection order would reflect the culpability of Mr Graham’s offending, his history of past breaches, and be consonant with the totality principles. The appeal from the November sentence was allowed, and the sentence of nine months was set aside, replaced with a sentence of three months’ imprisonment cumulative on the October sentence.

In summary, the appeal from the October sentence was dismissed, while the appeal from the November sentence was allowed. The effective end sentence for Mr Graham is 28 months, or two years and four months’ imprisonment.

Orders