Hale v Police - [2012] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-19 [2012] NZHC 1243

BETWEEN BENJAMIN HALE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 June 2012

Counsel: G Walsh for Appellant
JE Tarrant for Respondent

Judgment: 5 June 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL
Gerard Walsh (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent

HALE V POLICE HC HAM CRI-2012-419-19 [5 June 2012]

Introduction

[1] Mr Hale appeals against a sentence of 25 months’ imprisonment imposed on

him by Judge AIM Tompkins in the District Court at Hamilton on 1 May 2012.[1]

That sentence was in respect of one count of burglary. The appellant contends that the sentence was wrong in fact and in law, and was manifestly excessive.

Factual background

[1] The Judge also made a reparation order of $250 and an emotional harm payment of $1,000; but these are not in issue.

[2] At about 9:30 pm on 5 July 2011, the appellant and an (unidentified) associate broke into a house in suburban Hamilton, searched it and stole a television set. Their means of entry was to break a window of the bedroom where the young daughter of the occupants normally slept. Fortunately the house was empty.

[3] The appellant was identified as one of the burglars because he left behind in the lounge of the house the butt of a roll-your-own cigarette. DNA on the butt was linked to the appellant.

[4] The appellant was arrested on 7 August 2011 and appeared in the District Court on 8 August 2011. He entered a plea of not guilty. He changed that plea to one of guilty on 13 March 2012 as a consequence of the confirmation of the forensic DNA analysis.

[5] The victim impact statement records the quite profound effects on the young family who lived in the burgled house. The family spent four months living at a nearby family member’s house because the mother and daughter did not feel safe. The young daughter, in particular, found it hard to sleep at night because every noise she heard reminded her that it was her window that was smashed and through her room that the appellant gained access to the house. She would frequently go to her parents’ bed. The family also suffered financial loss and the television set was never
recovered. However, I am not concerned with the financial aspects of the case.

[6] The appellant has a significant record of criminal offending, including four previous convictions for burglary or being found in a closed place.

Defence submissions

[7] Mr Walsh for the appellant contends:

(a) That the starting point for the burglary is too high;

(b)That there has been an effective double-counting in the construction of the sentence; and

(c) The Judge took as aggravating factors matters which should have been treated as the absence of mitigating factors.

[8] Having analysed the cases, Mr Walsh contends that the starting point for the appellant’s offending should have been in the 12-18 months range, and so should the final…

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 Hale v Police

Details

AGLC: Hale v Police [2012] NZHC 1243
Case: [2012] NZHC 1243
Decision Date: 5 June 2012

CaseChat Overview and Summary

The High Court of New Zealand was called upon to review a sentence of 25 months’ imprisonment imposed on Mr. Benjamin Hale for a burglary offence. The appeal was heard by Brewer J, with G. Walsh representing the appellant and J.E. Tarrant representing the respondent. The central issue in this case was whether the sentence imposed by the District Court was both factually and legally sound, and whether it was excessively harsh. Mr. Hale argued that the starting point for the sentence was too high and that there was an instance of double-counting in the imposition of the sentence. He also contended that the judge had considered certain factors as aggravating when they should have been viewed as the absence of mitigating factors.

The court considered the arguments presented by both sides. The defence argued that the starting point for the sentence should have been within the range of 12 to 18 months. The Crown, on the other hand, accepted that the starting point was high but contended that the final sentence was not manifestly excessive. The court examined the process followed by the District Court Judge in determining the sentence, noting that the process was unorthodox. The Judge had considered home detention before assessing the sentence of imprisonment, which is contrary to the legal principle that home detention should only be considered after a sentence of imprisonment has been deemed appropriate.

After carefully considering the relevant factors and authorities, the court concluded that while the District Court Judge had indeed made some errors in the assessment process, the final sentence of 25 months’ imprisonment was not clearly excessive. However, the High Court determined that a 12% difference in the sentence was significant enough to warrant substitution of a new sentence. The appeal was allowed, and the sentence of 25 months’ imprisonment was quashed. A new sentence of 22 months’ imprisonment was substituted, while the financial penalties imposed by the District Court remained unchanged.

Orders