Green v Police - [2014] NZHC 444

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000058 [2014] NZHC 444

BETWEEN DANIEL ROBERT GREEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 March 2014

Appearances: W D McKean for Appellant
C M Gisler for Respondent

Judgment: 12 March 2014

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 12 March 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
WRMK Lawyers, Whangarei
Crown Solicitor, Whangarei

GREEN v NEW ZEALAND POLICE [2014] NZHC 444 [12 March 2014]

Introduction

[1] The appellant has appealed against the sentence imposed on him by Judge A-M Bouchier in the District Court at Whangarei, on 29 November 2013.1 The appellant says that the Judge adopted a starting point on the lead charge that was too high, leading to the end sentence on that charge (following the discount for his guilty plea) being manifestly excessive.

Background

[2] The appellant was sentenced on four charges. The first and second charges in time related to events on 18 July 2013. At about 3am Mr Green shot a .303 rifle outside his dwelling two or three times, one shot causing minor damage to the building. The Police found the rifle along with a .22 calibre rifle, an air rifle, and ammunition. The appellant did not have a firearms licence. The appellant was charged with unlawful possession of a firearm, and discharging a firearm in a dwellinghouse.

[3] The third charge was of theft. On 16 August 2013 the appellant, with an associate, stole grocery items valued at $600 from a supermarket.

[4] The fourth charge was aggravated robbery. On 17 August 2013 at about

7:30pm the appellant, together with an associate, drove to a dairy. The associate waited in the car while the appellant, armed with a sawn-off shotgun (which was unloaded), entered the store and demanded money and cigarettes from the shop attendant. He also threatened the attendant by saying, twice, “Hurry up, don’t make me use it”. The attendant complied and the appellant took $765.00 in cash and
$879.50 worth of cigarettes. The female shop attendant was extremely shaken and upset.

[5] After being arrested, the appellant admitted the aggravated robbery and other charges.

[6] The appellant has a number of previous convictions, including common assaults in 2012 and 2008, assault with intent to injure in 2008, and male assaults female also in 2008. The appellant also a number of convictions for driving with excess breath alcohol that are not relevant to the present charges.

District Court sentencing

[7] The Judge took the charge of aggravated burglary as the lead offence at sentencing. The Judge identified the use and threat of a weapon, a modest level of premeditation, and the extent of the damage (which, while not big, was large for a dairy’s profits) as aggravating features of the offending. The Judge gave no value to the fact that the firearm was unloaded, citing the lack of impact this has on the victim,…

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: [2014] NZHC 444
Decision Date: 12 March 2014

CaseChat Overview and Summary

The case of Green v Police, heard in the High Court of New Zealand, involved Daniel Robert Green appealing against the sentence imposed by Judge A-M Bouchier in the District Court at Whangarei. The appellant argued that the starting point on the lead charge was set too high, leading to a sentence that was manifestly excessive. The appellant was sentenced on four charges, including unlawful possession of a firearm, discharging a firearm in a dwelling house, theft, and aggravated robbery. The legal issues focused on whether the starting point for the lead charge was appropriate and whether the use of an unloaded firearm warranted a higher starting point than that suggested for a knife in the Court of Appeal's judgment in R v Mako. The court examined the threat created by the presentation of an unloaded firearm, the impact on the victim, and the starting points adopted in previous cases. The judgment concluded that the appropriate starting point should have been four years and four months imprisonment, resulting in a final sentence of three years and nine months imprisonment. The overall sentence of four years and three months was quashed and replaced with the new sentence.

Orders