Herlund v Police - [2013] NZHC 1531

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000140 [2013] NZHC 1531

BETWEEN PAUL NILS HERLUND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 24 June 2013

Appearances: R Keam (on behalf of H Steele) for Appellant
R Thomson for Respondent

Judgment: 24 June 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

PAUL NILS HERLUND v NEW ZEALAND POLICE [2013] NZHC 1531 [24 June 2013]

[1] Mr Herlund pleaded guilty in the District Court to two charges of receiving stolen property and five charges of being in possession of drugs including ecstasy, LSD, cannabis resin and methamphetamine. He was also for sentence on a charge of being in possession of a methamphetamine pipe, breaching the terms of a sentence of supervision and driving a vehicle in a non-operable state.

[2] On 19 April 2013, Judge Connell sentenced Mr Herlund to an effective sentence of 16 months imprisonment on those charges. In addition, he remitted fines totalling $9,152.83. In substitution for the fines, the Judge imposed a cumulative sentence of two months imprisonment. 1

[3] Mr Herlund appeals to this Court against the sentences the Judge imposed. First, he argues that the Judge applied a starting point that was too high in respect of the lead charges of receiving stolen property. Secondly, he argues that the Judge ought to have provided him with a further discount to reflect the fact that he had been on bail subject to a 24 hour curfew during the three month period prior to sentencing. Thirdly, he contends that the Judge had no jurisdiction to remit his fines and impose a further cumulative sentence of imprisonment.

The facts

[4] The lead charges of receiving arise because Mr Herlund was found in possession of stolen property on 16 October 2012. That property had been stolen in the burglaries of two residential addresses a short time earlier.

[5] The police searched Mr Herlund’s vehicle in the early hours of 16 October

2012 after they saw him acting suspiciously in Newmarket. In the vehicle they saw a 32” Sony flat screen television set that had been stolen the previous day in the burglary of a residential address in Newmarket. Mr Herlund claimed that the television set belonged to a friend. When the police searched the vehicle they also found .4 of a gram of methamphetamine, three ecstasy tablets, .5 of a gram of
cannabis resin and some cannabis plant material.

1 New Zealand Police v Herlund DC Auckland CRI-2013-004-000485, 19 April 2013.

[6] When the police searched Mr Herlund’s person, they found $1545 in cash and a motel room key. The police subsequently searched the motel room, and found several items that had been stole in two earlier burglaries. First, they found a Hewlett Packard laptop computer that had been stolen in the burglary of a residential address in Eden Terrace on the night of 5 October 2012. This was valued at $2000. Secondly, they found a passport and further electronic equipment that had been stolen in the…

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 Herlund v Police

Details

AGLC: Herlund v Police [2013] NZHC 1531
Case: [2013] NZHC 1531
Decision Date: 24 June 2013

CaseChat Overview and Summary

The appeal was brought by Paul Nils Herlund against his sentence imposed by the District Court. The appellant pleaded guilty to two charges of receiving stolen property, five charges of possession of drugs including ecstasy, LSD, cannabis resin, and methamphetamine, possession of a methamphetamine pipe, breaching the terms of a sentence of supervision and driving a vehicle in a non-operable state. The District Court sentenced the appellant to an effective sentence of 16 months imprisonment and remitted fines totalling $9,152.83, imposing a cumulative sentence of two months imprisonment in substitution. The appellant argued that the Judge applied a starting point that was too high in respect of the lead charges of receiving stolen property, that the Judge ought to have provided him with a further discount to reflect the fact that he had been on bail subject to a 24 hour curfew during the three month period prior to sentencing, and that the Judge had no jurisdiction to remit his fines and impose a further cumulative sentence of imprisonment. The Court considered that the starting point was not too high, the appellant had not been subject to electronic bail, and the Judge was entitled to remit the outstanding fines. The appeal against sentence was dismissed.

Orders