Henry v Police - [2016] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-7 [2016] NZHC 800

BETWEEN
JAMES WIKI HENRY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 April 2016

Counsel:

E J Forster for Appellant
N J Wynne for Respondent

Judgment:

27 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4.00pm on 27 April 2016

HENRY v NEW ZEALAND POLICE [2016] NZHC 800 [27 April 2016]

Introduction

[1] Mr Henry, the appellant, pleaded guilty to 13 charges of theft (shoplifting),1 one charge of breach of release conditions,2 and one charge of possession of methamphetamine.3

[2] He was sentenced to nine months imprisonment in the District Court at

Dannevirke on 26 January 2016.4

Factual background

[3] Six of the shoplifting charges involved theft from six different stores in Dannevirke on 16 May 2014. Between August 2014 and March 2015 the appellant stole on a further seven occasions from a variety of stores.

[4] The appellant had only recently been released on parole from Whanganui

Prison in August 2014 when he committed the August 2014 theft.

[5] A small bag containing methamphetamine was found near the appellant in a bedroom when a search warrant was executed in April 2015.

The sentencing decision

[6] The approach the District Court Judge took was to deal with all of the shoplifting charges together. Having fixed a starting point for the shoplifting he then fixed starting points for the remaining two charges: breach of parole and possession of methamphetamine. A nominal sentence was reached for the three categories of
offending then uplifts and discounts were applied.

1      Eight charges relating to goods valued under $500 (Crimes Act 1961, ss 219 and 223(d): maximum available sentence three months imprisonment) and five charges relating to goods valued between $500 and $1000 (Crimes Act 1961, ss 219 and 223(c): maximum available sentence one year imprisonment).
2      Parole Act 2002, s 71(1). Maximum available sentence: one year imprisonment.
3      Misuse of Drugs Act 1975, ss 7(1)(a) and (2).   Maximum available sentence: six months imprisonment.
4      Police v Henry [2016] NZDC 1102.

[7] The total value of the stolen goods was calculated to be $5,568.23. The Judge took a starting point of eight months. He increased that by two months to take account of previous offending. The appellant had 92 convictions for dishonesty offences. A discount of 25 percent was given for early guilty pleas. This resulted in a sentence of seven and a half months imprisonment.

[8] For breach of release conditions the Judge started with four months imprisonment. He reduced that by one month for the appellant’s guilty plea bringing the sentence to three months imprisonment. (I note, however, from a later passage in his Sentencing Notes that the Judge’s actual sentence on the charge of breach of
release conditions was two months imprisonment.5 Consistent with this actual

sentence the Record of Hearing attached to the Charging Document records a two month sentence on conviction for this offence.)

[9] For possession of…

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 Henry v Police

Details

AGLC: Henry v Police [2016] NZHC 800
Case: [2016] NZHC 800
Decision Date: 27 April 2016

CaseChat Overview and Summary

James Wiki Henry (the appellant) appealed against his sentence of nine months imprisonment imposed by the District Court at Dannevirke for 13 charges of theft, one charge of breach of parole, and one charge of possession of methamphetamine. The sentencing Judge had dealt with all the shoplifting charges together, then fixed starting points for the remaining two charges and applied uplifts and discounts. The appellant's counsel submitted that the sentence was manifestly excessive and that the Judge had failed to assess whether the total period of imprisonment was proportionate to the gravity of the overall offending. The respondent argued that the Judge’s approach was correct and that the sentence was not manifestly excessive.

The Court considered whether there was any error in the sentence warranting interference. It held that the sentence of nine months imprisonment was not disproportionate to the gravity of the appellant’s overall offending. The Court held that it would have been appropriate for the Judge to identify a lead charge, impose a sentence that reflected the criminality of that lead charge and then impose sentences for the remaining offences. However, the departure from the orthodox approach to sentencing did not result in a manifestly excessive sentence. The Court was satisfied that in his approach the Judge had given effect to the totality principle recognised in the Sentencing Act 2002.

The Court dismissed the appeal.

The Court made no orders as to costs.

Orders