Hamilton v Police - [2016] NZHC 938

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000019 [2016] NZHC 938

BETWEEN
DION JOHN HAMILTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 May 2016

Appearances:

P Johnson and S Teki-Clark for Appellant
D L Elsmore for Crown

Judgment:

10 May 2016

ORAL JUDGMENT OF DUNNINGHAM J

[1] Mr Hamilton was sentenced to two years and nine months’ imprisonment in the District Court for 23 charges of dishonesty related offences.1 He appeals that sentence on the basis that it was manifestly excessive.

[2] In his notice of appeal he says the Judge did not place enough weight on the appellant’s attempts to rehabilitate himself. However, in counsel’s legal submission, that ground has been expanded upon to explain that the Judge did not give discrete, and sufficient, discounts for the various mitigating features relating to the offender, including his co-operation.

Mr Hamilton’s offending

[3] The offending took place between 22 June and 24 August 2015 when the defendant was involved in a spree of residential burglaries in the Auckland area. He committed 19 separate burglaries and stole property in excess of $100,000. Very
little of the property was recovered or returned to the victims.

1 Police v Hamilton [2016] NZDC 2850.

HAMILTON v NEW ZEALAND POLICE [2016] NZHC 938 [10 May 2016]

[4] On 22 June 2016, an address in Auckland was burgled and an ASB paywave bankcard was taken. This was later obtained by the defendant and used to make seven purchases around the Auckland area. In addition, a set of six keys for a property in Mangere were taken in a burglary in August 2015. These were found by the police, hidden under the defendant’s mattress during the course of the search warrant for which he was charged with receiving.

[5] On 26 June 2015, there was a burglary of a residential address in Auckland. Later that day the defendant received two jewellery boxes valued at $500 which had been stolen in the burglary. The defendant admitted committing all the burglaries and using the stolen bankcards to purchase cigarettes. He admitted he received the set of keys and was paid $50 by an associate to hide the keys under his mattress.

[6] The appellant was arrested on 1 September 2015 on a number of the burglaries. During interviews with the police he made full admission to the burglaries he was subsequently charged with and assisted the police with their enquiries.

Sentencing

[7] The appellant pleaded guilty to the various charges on 27 November 2015 at the Manukau District Court and was transferred to the Christchurch District Court for sentencing on 23 February 2016.

[8] When sentencing Mr Hamilton, Judge Couch summarised the 23 convictions and adopted the 19 convictions for burglaries as the lead offences, noting that these carried a maximum penalty of 10 years’ imprisonment.

[9] As aggravating features, Judge Couch took into account the nature of the premises, being private dwellings, and the quantity and value of the property stolen. Furthermore, he acknowledged the distress…

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 Hamilton v Police

Details

AGLC: Hamilton v Police [2016] NZHC 938
Case: [2016] NZHC 938
Decision Date: 10 May 2016

CaseChat Overview and Summary

Dion John Hamilton appeals his sentence for 23 charges of dishonesty related offences, arguing that it was manifestly excessive. He contends that the District Court Judge did not sufficiently account for various mitigating factors, including his attempts at rehabilitation and his cooperation with the police. The appeal was heard by Dunningham J in the High Court of New Zealand, Christchurch Registry.

The court considered whether the sentence was manifestly excessive and whether the District Court Judge adequately considered the mitigating factors in sentencing. Counsel for the appellant argued that the Judge failed to provide discrete discounts for the appellant's previous good record, the imposition of restrictive bail conditions, his demonstrated remorse, his youth, and his cooperation with the police. The respondent conceded that the appellant's cooperation was a mitigating factor but argued that the overall sentence fairly reflected the offending and the various factors in the Sentencing Act.

The court found that while the overall discount of nearly 28 per cent was acceptable, it did not adequately account for the appellant's cooperation with the police. The court determined that the appellant should receive a separate discount for his assistance, which would be in addition to the discount for the mitigating factors before the guilty plea and the discount for the guilty pleas themselves. The court imposed a sentence of two years and six months, reducing the original sentence by three months.

The appeal was allowed, and the sentence of two years and nine months was set aside, replaced with a sentence of two years and six months.

Orders