H v Police HC Christchurch Cri-2007-409-8

[2007] NZHC 87

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-008

BETWEEN  H

Appellant

AND  THE POLICE Respondent

Hearing:         1 March 2007

Appearances: G.D. Trainor for Appellant

R.A. Souness for Respondent

Judgment:      1 March 2007

JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      H  , appeals against an effective sentence of 2 years 9 months imposed upon him on one charge of burglary.  The sentencing process was compounded because of the repeat offending of Mr H   while he was on parole. The  Judge  made an analysis of the  previous  sentencing  and  concluded  that  his release date was either November 2008 or March of 2009.

[2]      Ms  Souness,  on  behalf  of  the  Crown,  has  clarified  the  position  with Corrections, and it apparently is March 2009, because the starting point was a 6 month sentence for burglary that had been omitted somehow from the computer print out provided by the Ministry.  Following that, there was a further 2 year sentence, cumulative, for burglary;  6 months, cumulative, for burglary;  7 years for aggravated robbery involving a firearm, again cumulative;   and then 2 sentences, concurrent with each other, but cumulative on the previous offending, of 1 year and 2 months in

November 2004 in the Upper Hutt District Court.

H V THE POLICE HC CHCH CRI-2007-409-008  1 March 2007

[3]      It is apparent from the Crown’s analysis that the Judge was not in error, he correctly identified the release date, and concluded that if the sentence he imposed of

2 years 9 months was concurrent, Mr H   would only serve an additional 4 months.

[4]      Mr Trainor takes a somewhat different stance, while accepting the Judge has not fallen into the initial error he thought.  He says the total sentence will then be one of fourteen years, which would be manifestly excessive.

[5]      Mr H   has an unenviable record of offending.   No soon is he released that in a very short time he offends yet again in a very serious way.

[6]      The Judge noted the aggravating features of Mr H  ’s recidivism, noting that he was, in fact, a professional burglar.  The Judge also concluded, it seems to me correctly, that  an additional sentence of 4 months for this offending, committed while on parole, would not be adequate to meet the objects of the Sentencing Act.  I see no error in principle to this approach to the relevant provisions of the Sentencing Act given the cumulative sentences.

[7]      Either looking at the matter as a sentence for this offending, or looking at the total sentence, as urged by Mr Trainor, the result seems to me the same.  Given the appellant’s  background  and  the  aggravating  features,  it  cannot  be  said  to  be manifestly excessive.   It cannot be said to be inappropriate.   Indeed, if one was simply sentencing without taking into account the earlier sentences for burglary, given his record a very much stronger and more stern response could well have been justified.

[8]      In  all  of  the  circumstances,  I  think  the  Judge  has  analysed  the  matter correctly, applied the provisions of the Sentencing Act properly, and, accordingly the appeal is dismissed.

Solicitors

Trainor MacLean, Christchurch for Appellant

Crown Law, Christchurch for Respondent