Green v Police - [2019] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-483-11

[2019] NZHC 2565

REIJHAN RENEE GREEN

v

NEW ZEALAND POLICE

Hearing: 24 September 2019

Appearances:

R L Leith for Appellant

R N Benic for Respondent

Judgment:

9 October 2019

JUDGMENT OF CLARK J

Introduction

[1] Mr Green appeals his sentence of two years and two months’ imprisonment in relation to the following charges to which he pleaded guilty:1

(a)one charge of burglary;2

(b)three charges of unlawfully possessing a firearm;3

(c)one charge of dangerous driving;4

1      R v Green [2019] NZDC 15726 [sentencing notes].
2      Crimes Act 1961, s 231; maximum penalty 10 years imprisonment.
3      Arms Act 1983, s 45; maximum penalty four years imprisonment.
4      Land Transport Act 1998, s 35(1)(b); maximum penalty three months imprisonment.

GREEN v NEW ZEALAND POLICE [2019] NZHC 2565 [9 October 2019]

(d)one charge of failing to stop for police;5

(e)one charge of driving while disqualified;6

(f)one charge of theft;7 and

(g)two charges of breaching release conditions.8

[2] The key issue on appeal is whether Judge Crayton adequately recognised cultural factors.

Summary of offending

[3] On 9 November 2018, Mr Green stole approximately $50 worth of petrol from a Z Energy petrol station in Turangi. About half an hour later, Mr Green failed to stop for police. He accelerated away and travelled through a residential area (where the speed limit was 50 km/h) at speeds of up to 90 km/h. Police abandoned pursuit. Shortly thereafter, Mr Green encountered further police officers, who witnessed him manoeuvring around a corner on the wrong side of the road, at speed, while avoiding other vehicles. Police followed Mr Green at a distance for approximately two hours as he drove towards Whanganui. Police deployed a roadblock and spike strips. Mr Green avoided the spike strips by driving through a muddy ditch but in doing so damaged the steering column on his vehicle. When Mr Green stopped his vehicle he and his passenger attempted to escape on foot but were apprehended by police. Mr Green does not hold a driver’s licence.

[4] Mr Green was remanded on bail and remained subject to release conditions for previous burglary offending. On 7 December 2018 and in breach of his release conditions, Mr Green failed to report. Subsequently, Mr Green moved address without informing his probation officer, again in breach of his release conditions.

5      Land Transport Act 1998, ss 52A(1)(a)(ii) and (4); maximum penalty $10,000 fine.
6      Section 52(1)(c); maximum penalty $10,000 fine.
7      Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.
8      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment.

[5] Between 31 December 2018 and 2 January 2019, while on bail, Mr Green entered an unoccupied residential address through a door that had been left unlocked. He left behind a hunting knife he was carrying at the time. He stole several items, including a laptop valued at $300, two passports, and a piggybank belonging to the victim’s eight-year-old…

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 Green v Police

Details

AGLC: Green v Police [2019] NZHC 2565
Case: [2019] NZHC 2565
Decision Date: 9 October 2019

CaseChat Overview and Summary

The appellant, Mr Green, appeals his sentence of two years and two months' imprisonment imposed by Judge Crayton in the Whanganui District Court. The sentence was imposed for seven charges to which Mr Green pleaded guilty, including burglary, unlawful possession of a firearm, dangerous driving, and breaching release conditions. The central issue before the court was whether Judge Crayton appropriately recognised the cultural factors influencing Mr Green's offending. Mr Green's counsel argues that the sentence is manifestly excessive because it does not sufficiently account for his client's cultural background and potential for rehabilitation. The Crown contends that the sentence was appropriate, considering Mr Green's culpability and criminal history.

The court begins by noting the well-established principle that parole eligibility should not influence sentencing. However, in this case, the court finds that the exceptional circumstances warrant a sentence that emphasises rehabilitation. The cultural report submitted by the defence highlights the systemic deprivation and challenges Mr Green faced due to his upbringing within a Māori community. The report also notes Mr Green's willingness to change his lifestyle and distance himself from gang associations. The court acknowledges that the 11% discount provided by Judge Crayton for cultural factors was insufficient, and that a higher discount was warranted given Mr Green's demonstrated motivation for change. The court also highlights Mr Green's attempts to participate in restorative justice and his decision to relinquish his gang membership as evidence of his desire to reform.

The court concludes that the sentence imposed by Judge Crayton was manifestly excessive, and the appeal against sentence is allowed. The sentence of two years and two months' imprisonment is reduced to two years' imprisonment, with the order for the destruction of the firearms remaining in place.

Orders