Hansen v Police - [2018] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000051

[2018] NZHC 361

BETWEEN
JOHN EDWARD HANSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 March 2018

Appearances:

RGR Eagles for Appellant M J Thomas for Respondent

Judgment:

8 March 2018

JUDGMENT OF GENDALL J

Introduction

[1] The appellant pleaded guilty to three counts of burglary and three counts of receiving stolen property and on 18 October 2017 he was sentenced in the District Court at Invercargill to two years and three months’ imprisonment.1 He now appeals that sentence, submitting that it was manifestly excessive.

Facts

[2] On 16 June 2017, the appellant was picked up in a car driven by his co- offender, Mr Woods. Mr Woods then drove to three different rural properties. At each, Mr Woods burgled tools from sheds on the properties while the appellant remained in the car. The appellant claimed not to have known in advance that is what Mr Woods

1 Police v Hansen [2017] NZDC 23884.

HANSEN v NEW ZEALAND POLICE [2018] NZHC 361 [8 March 2018]

intended but admitted that once he did know this, he effectively acted as a lookout. The burgled properties were all on sealed highways close to Tapanui. No-one was present when the items were taken.

[3] The appellant and Mr Woods then returned to the appellant’s house. Mr Woods deposited the stolen tools, and other tools he had stolen on earlier occasions, at the appellant’s property. When Police searched the property some days later, they found all the stolen items.

District Court decision

[4] In his decision in the District Court, Judge Hunt set out his understanding of the facts. Initially he thought that the three burglaries happened over two successive nights, but counsel corrected him. The Judge characterised the appellant throughout his judgment as having an active part in the offending. He noted the victim impact statements and the harm from these types of burglaries. He also noted the appellant’s extensive criminal history, although he acknowledged that the appellant had only one prior conviction for burglary.

[5] The Judge took a start point of 32 months’ imprisonment. He then applied an uplift of four months for the appellant’s prior record of dishonesty, the aggravating nature of burglary from isolated rural properties and the targeted theft of tools. He then gave a 25 per cent discount for the appellant’s prompt guilty plea. This resulted in a sentence of 27 months’ imprisonment, precluding home detention. The Judge ordered the appellant to pay $700 in reparation and cancelled the balance of the appellant’s existing sentence of community work.

[6] The co-offender, Mr Woods, was sentenced in the District Court at Invercargill on 10 August 2017 on a range of charges which included charges for the incidents here in question for which the defendant had pleaded guilty. His end sentence effectively was one of imprisonment of two years seven months on burglary charges, three months concurrent on receiving charges and one…

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 Hansen v Police

Details

AGLC: Hansen v Police [2018] NZHC 361
Case: [2018] NZHC 361
Decision Date: 8 March 2018

CaseChat Overview and Summary

Hansen appealed against his sentence of two years and three months' imprisonment for multiple burglaries and receiving stolen property, arguing that the sentence was manifestly excessive. The appeal was brought out of time, but the Court granted leave to appeal out of time as no party was disadvantaged, and the respondent did not oppose the application. The primary legal issue was whether the sentence was manifestly excessive and not justified by the relevant sentencing principles. The Court found that the starting point of 32 months' imprisonment was excessive and in breach of the principle of parity, given the sentence of the appellant's co-offender. The Court found that a starting point of two years was appropriate, taking into account the totality of the offending and the co-offender's sentence. The Court also found that the uplift applied by the Judge was excessive and that an uplift of two months was sufficient to recognise the appellant's poor criminal record. The Court concluded that the appropriate sentence was less than two years, and therefore home detention should be considered. The Court quashed the original sentence and imposed a sentence of 19 months' imprisonment, with leave to apply for home detention. The Court also quashed the reparation order of $700 and replaced it with an order to pay $350. Finally, with the Crown's consent, the Court set aside the conviction on one of the receiving charges that had been duplicated.

Orders