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Grey v Police

Grey v Police

Case [2023] NZHC 2065 4 August 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000249

[2023] NZHC 2065

BETWEEN
MITCHELL TYLER GREY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 July 2023

Appearances:

A Ives for Appellant

J L Gibson for Respondent

Judgment:

4 August 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 4 August 2023 at 2.15 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel:
A Ives, Barrister, Auckland Crown Solicitor, Auckland

GREY v NEW ZEALAND POLICE [2023] NZHC 2065 [4 August 2023]

Introduction

[1] Mitchell Grey (the appellant) pleaded guilty to charges of: burglary;1 theft;2 being found in a motor vehicle without reasonable excuse;3 and two charges of being unlawfully in a building.4 On 5 May 2023, he was sentenced by Judge D J McDonald in the Auckland District Court to 16 months’ imprisonment.5 He appeals his sentence on the grounds that it was manifestly excessive and says that the Judge erred by adopting a starting point that was too high, and by failing to allow for the time he spent on electronically monitored (EM) bail.

[2] The respondent opposes the appeal and says that the appellant cannot show that the sentence imposed by the Judge was manifestly excessive. The respondent says that the 16 months sentence was within the available range, and the adjustment proposed by the appellant would amount to “tinkering” with the sentence imposed by the Judge.

Offending

[3] The offending occurred in Hawkes Bay and Auckland over several months during 2022.

[4] Sometime between 4.00 pm on 11 February and 7.00 am on 14 February 2022, the appellant entered a secure construction site in Hastings. He cut holes in the building wrap on one of the units under construction, reached inside to unlatch a window, and gained entry. He took a laptop charger, an outlet power centre, and a fast charger. The items are collectively valued at approximately $280.

[5] On the afternoon of 18 February 2022, the appellant entered a Rebel Sport store in Hastings. He picked up a pair of shoes, removed the security tag and put the shoes

1      Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
2      Crimes Act 1961, ss 219 and 223(d). Maximum penalty of three months’ imprisonment.
3      Summary Offences Act 1981, s 29. Maximum penalty of three months’ imprisonment, or $2,000 fine.
4      Summary Offences Act 1981, s 29. Maximum penalty of three months’ imprisonment, or $2,000 fine.
5      New Zealand Police v Grey [2023] NZDC 9138.

on, leaving his own shoes under a bench in the store. He was stopped by staff while walking around inside the store and was asked to remove the shoes.

[6] Around 4.00 am on 12 July 2022, the appellant went to a butcher’s business premises Greenlane, Auckland. He cut padlocks and forced open a heavy-duty door to gain entry to the premises. Once inside he attempted to open the door to the chiller but was unsuccessful. He then departed.

[7]…

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 Grey v Police

Details

AGLC: Grey v Police [2023] NZHC 2065
Case: [2023] NZHC 2065
Decision Date: 4 August 2023

CaseChat Overview and Summary

Mitchell Grey, the appellant, pleaded guilty to various charges including burglary, theft, and being found in a motor vehicle without reasonable excuse. He was sentenced to 16 months' imprisonment by Judge D J McDonald in the Auckland District Court. Grey appeals the sentence, arguing it was manifestly excessive and that the Judge erred in setting the starting point too high and neglecting to consider the time he spent on electronically monitored bail. The respondent, New Zealand Police, opposes the appeal, asserting that the sentence was within the available range and that any adjustment would amount to "tinkering" with the sentence.

The court considered whether the starting point for the burglary charge was appropriate, whether the uplift for other charges and previous burglary convictions was correct, and whether any discount should be applied for time spent on electronically monitored bail. The court found that an appropriate starting point for the burglary charge was 12 months' imprisonment, an uplift of three months for other charges and four months for previous burglary convictions were appropriate, and no discount for time spent on electronically monitored bail should be applied due to non-compliance and further offending while on bail.

The court concluded that the sentence of 16 months' imprisonment imposed by Judge McDonald was not manifestly excessive and that reducing the sentence by one month would amount to "tinkering" with the sentence imposed. The appeal was dismissed.

Orders