Hamlin v Police - [2024] NZHC 767

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-83

[2024] NZHC 767

BETWEEN
LUKIN IZACC RICHARD RICHARD DAVID HAMLIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 Apri 2024

Appearances:

G D Macdonald for appellant

W N Fotherby and H C I Wagner-Hiliau for respondent

Judgment:

11 April 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 11 April 2024 at 12pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

HAMLIN v POLICE [2024] NZHC 767 [11 April 2024]

[1] On 9 February 2024, Lukin Hamlin was sentenced in the Waitākere District Court to a term of 14 months' imprisonment.1 He appeals against that sentence, submitting that he should instead have been sentenced to intensive supervision.

[2] Mr Hamlin’s appeal is brought under subpt 4 of the Criminal Procedure Act 2011. I must allow it if there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss it.2 Before a first appeal Court may substitute its own views, the sentence at first instance must be manifestly excessive. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.3 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.4

Was Mr Hamlin’s sentence manifestly excessive?

Background

[3] Now aged 46 years old, Mr Hamlin commenced to accumulate shoplifting convictions in 2009. By 23 September 2013, when he was sentenced to a year's supervision, he had been convicted of 25 such offences, alongside others. In June 2014, and then again in January 2015, Mr Hamlin was imprisoned for periods of months for numerous theft or shoplifting, and other, offences.

[4] In July 2016, Mr Hamlin was sentenced to a second term of one year's supervision, but in September and then again in December that year, he was sentenced to periods of home detention for drug-related offences. Then, in 2017, he was sentenced to two further periods of months in prison when he breached home detention conditions.

[5] In September 2018, Mr Hamlin was sentenced to nine months' intensive supervision for shoplifting. In November 2019, he was sentenced to community

1      New Zealand Police v Hamlin [2024] NZDC 2643.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
4      Ripia v R [2011] NZCA 101 at [15].

detention and intensive supervision for burglary and breach of intensive supervision conditions, amongst other things.

[6] In August 2021, Mr Hamlin was sentenced to five months' home detention for a further 20 theft or shoplifting offences, along with others. In all, by this time he had accumulated 105 convictions, the vast bulk of which were for theft or shoplifting.

Offending sentenced on 9 February 2024

[7] Soon after his…

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 Hamlin v Police

Details

AGLC: Hamlin v Police [2024] NZHC 767
Case: [2024] NZHC 767
Decision Date: 11 April 2024

CaseChat Overview and Summary

Lukin Hamlin appeals against his 14-month imprisonment sentence imposed by the Waitākere District Court on 9 February 2024, arguing that he should have been sentenced to intensive supervision instead. The appeal was brought under the Criminal Procedure Act 2011, and the High Court must determine if there was an error in the sentence and if a different sentence should be imposed. The High Court will only intervene if the sentence at first instance is manifestly excessive, which is assessed based on the final sentence given rather than the process by which it was reached.

Judge Johnstone concluded that the sentence was not manifestly excessive, despite Mr Hamlin's extensive history of theft and shoplifting offenses, and his recent conduct. The Judge considered Mr Hamlin's guilty pleas, his brief participation in a rehabilitative program, and his period on electronically monitored bail. The Court held that the Judge at first instance appropriately balanced the rehabilitative, accountability, responsibility, and community protection purposes of sentencing in reaching the 14-month sentence. The High Court dismissed Mr Hamlin's appeal, affirming the original sentence.

Orders