Greenwood v Police - [2016] NZHC 2951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000358 [2016] NZHC 2951

BETWEEN
SAMUEL MORGAN GREENWOOD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 December 2016

Counsel:

P Eastwood for Appellant
P J Arnold for Respondent

Judgment:

6 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
P Eastwood, Auckland.
Meredith Connell, Auckland.

GREENWOOD v POLICE [2016] NZHC 2951 [6 December 2016]

The issue

[1] This is a sentence appeal in form but a conviction appeal in substance.

[2] On 27 September 2016, Judge Jelas sentenced the appellant to a term of

25 months’ imprisonment.1 Mr Eastwood contends the appellant pleaded guilty because the appellant reasonably apprehended the Judge was going to impose home detention. He contends the convictions should be quashed so the appellant has a fresh election, or in the alternative, home detention should be imposed.

Background

[3] The appellant’s convictions arose from his involvement in a re-birthing operation. Readers could be forgiven for not knowing what that means. Re-birthing in a criminal context involves the removal of registration plates, vehicle identification number (VIN) tags and chassis plates from stolen vehicles and replacing them with identifiers from legitimate but run-down vehicles in order to conceal the vehicle’s identity.

[4] Most of the charges were laid on 20 October 2015. Police executed a search warrant at the appellant’s property after a raft of vehicle thefts in the area. They found four stolen vehicles in his driveway. The identifiers on most of these vehicles had been interfered with. Three had modifications intended to disguise their identity. Hence the four charges of knowingly receiving stolen vehicles.

[5] A search of the appellant’s house revealed two .22 rifles, and .22 ammunition.

This resulted in two Arms Act charges.

[6] On a bail check Police observed a white Mitsubishi Pajero believed to be one of three stolen from the North Shore a week earlier. When it was checked its VIN and registration plates had been removed. The chassis number had been interfered
with. This resulted in a fifth receiving charge, laid 6 November 2015.

1 Police v Greenwood [2016] NZDC 19009.

[7] On 13 November 2015, the appellant was found to be driving. He had earlier been disqualified from driving. He was charged with driving while disqualified, being a third or subsequent offence. Police impounded his vehicle. It was later identified with the help of the owner as being stolen a week earlier. On
18 November 2015, the appellant was charged with theft of this vehicle.

Events in the Court below

[8] Judge Jelas gave a sentence indication on 6 July 2016. Her Honour considered the first four receiving charges the lead offences. The Judge adopted a starting point of two-and-a-half years’ imprisonment, which was increased by six months having regard to the later offending, and a further month for the appellant’s criminal history. That took the sentence to three years and one month imprisonment.

[9] The Judge observed if the appellant accepted the sentence indication he would likely be given the full…

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: [2016] NZHC 2951
Decision Date: 6 December 2016

CaseChat Overview and Summary

Greenwood v Police is a case where the appellant, Samuel Morgan Greenwood, appealed against his conviction and sentence. The appellant was convicted of various charges including receiving stolen vehicles, Arms Act charges, and driving while disqualified. The High Court of New Zealand heard the appeal on 6 December 2016, with P Eastwood representing the appellant and P J Arnold representing the respondent. The court dismissed the appeal and upheld the original sentence of 25 months' imprisonment.

The legal issue in this case was whether the appellant's guilty plea was induced by a reasonable apprehension that the sentence would be home detention. The appellant's counsel argued that the appellant pleaded guilty because he reasonably believed that the sentence would be home detention, or at least likely to be home detention. The appellant's counsel contended that the convictions should be quashed so that the appellant has a fresh election, or in the alternative, that home detention should be imposed.

The court found that the appellant did not have a legitimate expectation that he would receive a sentence of home detention, or an expectation that sentence was likely. The court noted that the judge had indicated she might be prepared to consider home detention as a possible sentencing option, but also made it clear that the sentence of imprisonment was likely. The court held that there was no evidence before it as to what, if anything, the appellant thought, and disagreed with the submission that this was a reasonable inference from the record. The court found that the judge was careful in her remarks and nothing that she said could be fairly understood to have induced the appellant's pleas of guilty.

The court dismissed the appeal and upheld the original sentence of 25 months' imprisonment. The court held that the focus of the inquiry was not on what the defence counsel should or should not have done or understood, nor on the predictability and correctness of an uplift of this magnitude. The court held that what mattered was that the appellant did not have a legitimate expectation that he would receive a sentence of home detention, or an expectation that sentence was likely. The court found that the appellant's guilty pleas were not induced by any reasonable apprehension that the sentence would be home detention, or an allied expectation that sentence was likely.

Orders