Herewini v Police - [2015] NZHC 2807

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-37 [2015] NZHC 2807

BETWEEN
LOGAN HEREWINI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 November 2015

Counsel:

TSM Spencer for the Appellant
JPR Scott for Respondent

Judgment:

12 November 2015

JUDGMENT OF DUFFY J

This judgment was delivered by me on 12 November 2015 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Crown Solicitor, Whangarei

Counsel:
Tracy Spencer, Whangarei

HEREWINI v NEW ZEALAND POLICE [2015] NZHC 2807 [12 November 2015]

[1] Mr Herewini appeals against a sentence of three years three months imprisonment on a charge of burglary. Concurrent sentences of one month each for charges of unlawfully being in an enclosed yard and possession of cannabis were also imposed, although these sentences are not appealed.

[2] The appeal was filed two days late. I propose to allow an extension of time for filing the appeal as in my view the sentence imposed was manifestly excessive. My reasons for reaching this conclusion now follow.

Facts

[3] Mr Herewini committed the offences of unlawfully being in an enclosed yard and possession of cannabis on 11 April 2015. He entered a property and walked around to a large shed area where there was some farming machinery. A short time later Mr Herewini realised the occupier had arrived; he ran into the shed and hid underneath a farming machine. Police were called. They arrested Mr Herewini and located approximately 1.5 grams of cannabis on his person.

[4] On the morning of 20 July 2015 Mr Herewini went to a residential address in Kaitaia. He had on gardening gloves and carried a backpack and screwdriver. He entered the property, forced the roller door of the garage open, crawled under it, entered the dwelling through the garage and began to search the house. He was observed in the lounge by an off-duty police officer. When he noticed the officer he began to crawl around on his hands and knees. The officer called the police.

Previous Convictions

[5] Mr Herewini has a number of convictions for burglary: five counts from a single occasion in 2011 and convictions from 2010, 2003, two occasions in 2002 and
1999. He also has a conviction from being a party to a burglary in 2002.

Pre-sentence report

[6] The pre-sentence report is not included in the appeal file, although one is referred to by the District Court Judge.

District Court Sentencing

[7] On sentencing Judge Harvey noted that it was quite clear from Mr Herewini’s previous convictions that he was a recidivist burglar. He recorded comments in the pre-sentence report that he needed rehabilitative programs and counselling but was resistant to those on his last release. He had substance abuse issues, an unhelpful lifestyle and was assessed as posing a high likelihood of reoffending.

[8] Judge Harvey also recorded that Mr Herewini had 11 previous convictions for burglary, had been to prison for burglary and had demonstrated that he was going to continue…

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 Herewini v Police

Details

AGLC: Herewini v Police [2015] NZHC 2807
Case: [2015] NZHC 2807
Decision Date: 12 November 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Logan Herewini appealed against a sentence of three years and three months imprisonment for a charge of burglary, as well as concurrent sentences of one month each for charges of unlawfully being in an enclosed yard and possession of cannabis. Herewini argued that the sentence imposed was manifestly excessive and that the District Court Judge had made errors in considering his previous convictions and not acknowledging his remorse. The court was required to decide whether the sentence was manifestly excessive and whether there was a valid reason to extend the time for filing the appeal, which was two days late.

The court found that the sentence imposed was indeed manifestly excessive. The starting point for the sentence was set too high, considering Herewini's previous convictions both when setting the starting point and in an uplift. The court also noted that the judge did not give any credit for Herewini's remorse. The appeal was allowed, and the sentence of imprisonment for the burglary offence was set aside and replaced with a sentence of 19 months imprisonment. The sentences for the other two offences were not the subject of the appeal and remained in place.

Orders