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…
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- Hale v Police [2012] NZHC 1243
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- [2012] NZHC 1243
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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