Hewitt v Police - [2012] NZHC 3332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000297 [2012] NZHC 3332

BRONSON HEWITT
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 11 December 2012

Appearances: G Newell for Appellant
K Wendt for Respondent

Judgment: 11 December 2012

(ORAL) JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Mr G Newell, Auckland.
Crown Solicitor (K Wendt) Auckland

HEWITT V NZ POLICE HC AK CRI-2012-404-000297 [11 December 2012]

Introduction

[1] On 7 August 2012 in the Manukau District Court, Judge Gibson sentenced the appellant, Mr Bronson Hewitt, to a total term of two years seven months imprisonment in respect of a range of offences to which he had pleaded guilty. The most serious charge was one of burglary almost two years earlier. There were in addition three charges relating to breach of Court orders and six charges relating to various offences committed in April and May 2012.

[2] The various charges and sentences imposed were:

Charge Date Sentence of imprisonment

Burglary 3/12/2010 2 years 3 months

Breach of intensive supervision 7/3/2012 2 months (concurrent)

Failure to answer DC bail 20/3/2012 2 months (concurrent)

Breach of community work 13/4/2012 2 months (concurrent)

Theft (under $500) 16/4/2012 2 months (concurrent)

Unlawfully getting into motor
vehicle 26/4/2012 2 months (concurrent)

Driving with excess breath alcohol 19/5/2012 2 months (concurrent)

Dangerous driving 19/5/2012 2 months (concurrent)

Driving while disqualified 19/5/2012 2 months (concurrent)

Giving false details 19/5/2012 Convicted and discharged

[3] In addition, Mr Hewitt was sentenced to four months imprisonment cumulative on the term of two years three months imprisonment imposed on the burglary charge in respect of the following charges:

Charge Date

Driving while disqualified 15/11/2010

Receiving stolen property 15/11/2010

Failure to answer District Court bail 30/11/2010

Unlawfully getting into motor vehicle 21/12/2010

[4] Mr Hewitt had originally received two years intensive supervision on these four charges but the Department of Corrections had applied for his re-sentencing because of his failure to comply with the conditions of intensive supervision.

[5] Mr Hewitt now appeals against the total sentence of two years seven months imprisonment on the basis that it is manifestly excessive.

District Court decision

[6] Judge Gibson took the burglary as being the lead offence for sentencing purposes. He then determined that there should be an uplift in the lead sentence for the other offending committed between March and May 2012. However, he determined that the offences which occurred in November and December 2010 in respect of which Mr Hewitt had originally been sentenced to intensive supervision should be treated differently and a cumulative sentence imposed on the appellant’s re-sentencing.

[7] Judge Gibson referred to the appellant’s extensive list of previous convictions. He noted the wide range of offences and remarked that Mr Hewitt had not been particularly responsive to community-based sentences as the present application for re-sentencing on the intensive supervision sentence demonstrated.

[8] Judge Gibson then noted that the pre-sentence report recommended a sentence of imprisonment. The report writer, however, accepted that the appellant did have some insight into his offending and how he…

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 Hewitt v Police

Details

AGLC: Hewitt v Police [2012] NZHC 3332
Case: [2012] NZHC 3332
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Bronson Hewitt appealed against his sentence of two years seven months imprisonment, arguing that it was manifestly excessive. Hewitt was sentenced by the Manukau District Court for various offences, including burglary, breach of court orders, and driving offences. The District Court Judge, Judge Gibson, adopted a starting point of 18 months imprisonment for the burglary charge and added an uplift of six months for the totality of the offending and a further nine months for the appellant’s extensive criminal history and offending on bail and while subject to a sentence.

Hewitt's counsel submitted that the starting point adopted for the burglary charge was too high, and the uplift for previous convictions and offending on bail was excessive. He argued that a starting point of 12 months imprisonment was more appropriate. He also submitted that if the sentence was to be a term of imprisonment, it should be between 12 and 24 months and that orders should be made under section 93(2) of the Sentencing Act 2002 for alcohol and drug assessment counselling or treatment. The Police submitted that the approach adopted by the Court in Senior v Police was of limited relevance in relation to burglary sentencing because the Court of Appeal had indicated that burglaries should be sentenced in the same manner as other offending. They submitted that a starting point of 18 months imprisonment was open to Judge Gibson on the facts and could not be seen as excessive.

The High Court found that the starting point for the single charge of burglary was too high and that the appropriate starting point was a term of 15 months imprisonment. The Court considered that an uplift of six months imprisonment to reflect the totality of the offending was appropriate, but a further uplift of nine months imprisonment for the appellant’s previous record, offending while on bail and subject to a sentence was excessive. The Court found that a further uplift of no more than six months imprisonment for the appellant’s previous record, offending while on bail and subject to a sentence was appropriate. The final sentence imposed on the charge of burglary was one year nine months imprisonment. The appeal was allowed, and the sentence of two years three months imprisonment on the charge of burglary was quashed and replaced with a sentence of one year nine months imprisonment. All other sentences remained the same, and the total term of imprisonment was two years one month.

Orders