Hansen v Police - [2017] NZHC 425

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000046

[2017] NZHC 425

IN THE MATTER OF an appeal against sentence

BETWEEN

BIANCA GEORGINA HANSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 March 2017

Counsel:

M J Kidd for the Appellant

T R Bellingham for the Respondent

Judgment:

13 March 2017

(ORAL) JUDGMENT OF EDWARDS J

HANSEN v POLICE [2017] NZHC 425 [13 March 2017]

Solicitors: Kidd Legal, Auckland
Meredith Connell, Auckland

Introduction

[1] Ms Hansen pleaded guilty to charges of burglary,1 possession of utensils for methamphetamine,2 possessing methamphetamine,3 receiving,4 and two charges of breach of a sentence of supervision. She was sentenced to 10 months’ imprisonment for the burglary charge. She received two months’ imprisonment for the charge of receiving which was concurrent with the burglary sentence. She was convicted and discharged on the other offences.

[2] Ms Hansen appeals the burglary sentence on the ground that it is manifestly excessive, and the District Court Judge should have given greater consideration to alternatives to a sentence of imprisonment.

The offending

[3] The burglary charge arose out of events on 24 November 2016. Ms Hansen and an associate entered a residential property owned by the victim. The victim was present at the property. Ms Hansen went to the front door and took a pair of shoes owned by the victim valued at approximately $100.

[4] Ms Hansen and her associate were located and arrested by police a short while later. A search of Ms Hansen’s handbag revealed a cut down straw and a number of small plastic ziplock bags. This forms the basis of the possession of utensils charge.

[5] The receiving and possession of methamphetamine charges arise out of offending in April 2016. A locked shed at the rear of the Ranui Baptist Church was broken into and 20 to 30 boxes of clothing items were stolen. The stolen boxes of clothing were subsequently located in a car in which Ms Hansen was the passenger.

1      Crimes Act 1961, s 231, maximum penalty 10 years’ imprisonment.
2      Misuse of Drugs Act 1975, s 31(1)(a), maximum penalty one year’s imprisonment or $500 fine.
3      Misuse of Drugs Act 1975, s 7(1)(a) and (2), six months’ imprisonment, $1,000 fine.
4      Crimes Act 1961, ss 246 and 247, maximum penalty seven years’ imprisonment.

On searching Ms Hansen, a small ziplock bag containing under 0.1 grams of liquid methamphetamine was found in her handbag.

Personal circumstances

[6] Ms Hansen is 35 years old. She is the mother of three children who are currently being cared for by their grandmother.

[7] Ms Hansen has a number of previous convictions from 2014 and 2015. These include a conviction for theft of property (under $500), and unlawfully taking a motor vehicle. She was sentenced to reparation of $117.16, and 60 hours’ community work for this offending.

[8] In addition, Ms Hansen has a number of convictions for failing to answer District Court bail, and breach of community work. She does not have any drug…

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 [2017] NZHC 425
Case: [2017] NZHC 425
Decision Date: 13 March 2017

CaseChat Overview and Summary

The case of Hansen v Police involves an appeal against sentence by Bianca Georgina Hansen against the New Zealand Police. Ms Hansen pleaded guilty to multiple charges, including burglary, possession of utensils for methamphetamine, possession of methamphetamine, receiving, and two charges of breach of a sentence of supervision. She was sentenced to 10 months' imprisonment for the burglary charge, with an additional two months for the charge of receiving, which ran concurrently with the burglary sentence. Ms Hansen appealed the burglary sentence, arguing it was manifestly excessive and that the District Court Judge should have considered alternatives to imprisonment more thoroughly.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the District Court Judge erred by not sufficiently considering alternatives to imprisonment and Ms Hansen's rehabilitative needs. The court considered the starting point for the burglary charge, the uplift for the other charges, and the discount for the guilty plea and insight into offending. The court noted that while Ms Hansen's offending was at the lower end of the scale due to the low value of the stolen item and its return, the presence of the victim was an aggravating factor. The court found that the starting point of 12 months was within the appropriate range, and the two-month uplift for the other offences and four-month discount for the guilty plea and insight were appropriate. The court also considered the lack of available options for community-based or electronically monitored sentences and Ms Hansen's reluctance to address her drug addiction.

The court concluded that the sentence imposed was at the higher end of the available range but did not fall outside of it. The court found that the District Court Judge had considered the factors in favour of a community-based sentence and the availability of electronically monitored sentences but was constrained by Ms Hansen's refusal to address her rehabilitative needs. The appeal was dismissed, and the sentence upheld.

The final orders of the court were that the appeal against sentence be dismissed, and the sentence imposed by the District Court be upheld.

Orders