Heywood v Police - [2013] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-000019
[2013] NZHC 2506

BETWEEN
JERIMIE CHARLES HEYWOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 September 2013

Appearances:

A Malik for Appellant

K Laurenson for Respondent

Judgment:

25 September 2013

(ORAL) JUDGMENT OF ANDREWS J

Solicitors/Counsel:
Public Defence Service, Napier (A Malik) Elvidge & Partners, Napier (K Laurenson)

HEYWOOD v NEW ZEALAND POLICE [2013] NZHC 2506 [25 September 2013]

Introduction

[1] Mr Heywood has appealed against a sentence of 14 months imprisonment, imposed by Judge R L Watson in the District Court at Napier on 12 July 2013, after he pleaded guilty to one charge of burglary.[1] The appeal was laid on two grounds: first, that the Judge double-counted the factor of abuse of trust, and secondly, that the Judge failed to give proper consideration to the totality principle in imposing the sentence cumulatively upon an existing sentence of imprisonment.

Preliminary issue

[1] Police v Heywood DC Hastings CRI-2013-020-490, 12 July 2013.

[2] Mr Heywood’s appeal was filed on 16 August 2013. As he was sentenced on 12 July 2013, the last day for filing an appeal was 10 August 2013, being 28 days after the sentence was imposed. It was noted in written submissions filed by Ms McLean on behalf of Mr Heywood that the reason for the delay in filing was that the due date for filing had been incorrectly noted. Leave to file the appeal was not opposed by Ms Laurenson on behalf of the Crown and in the circumstances, leave is given for the appeal to be filed late.

Background facts

[3] Mr Heywood committed the burglary on the night of 6/7 February 2013. The property he entered is owned by a “best mate” of Mr Heywood’s father, who is in fact Mr Heywood’s godfather. Mr Heywood knew the victim was going to be away at the time, and targeted the property. He forced his way in by breaking a window, and removed a television set, speakers, and laptop. The total value of property taken was $5,000. The victim did not have insurance for the contents of the property. The victim had previously helped Mr Heywood financially, by providing him with work, and by financial assistance. He had also given Mr Heywood general support, including having visited him when he was serving earlier terms of imprisonment.

[4] Mr Heywood has an extensive criminal history, of about 76 convictions dating back to 2004. These were for offences of dishonesty, violence, breaching Court orders, and failing to comply with sentences. They include two convictions

for burglary, in February 2009, in respect of which Mr Heywood was sentenced to concurrent terms of 12 months imprisonment. I understand that was the term imposed after an appeal.

[5] On 14 February 2013, Mr Heywood was sentenced to 14 months imprisonment on charges of driving while disqualified, driving while suspended (he was at the time subject to an indefinite disqualification) and driving with excess alcohol (two charges), careless use of a…

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.

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Details

Case: [2013] NZHC 2506
Decision Date: 25 September 2013

CaseChat Overview and Summary

Mr Heywood appealed against a sentence of 14 months imprisonment, imposed by Judge R L Watson in the District Court at Napier on 12 July 2013, after he pleaded guilty to one charge of burglary. The appeal was laid on two grounds: first, that the Judge double-counted the factor of abuse of trust, and secondly, that the Judge failed to give proper consideration to the totality principle in imposing the sentence cumulatively upon an existing sentence of imprisonment. Heywood committed the burglary on the night of 6/7 February 2013, targeting a property owned by a “best mate” of Heywood’s father, who is in fact Heywood’s godfather. Heywood knew the victim would be away at the time, and forced his way in by breaking a window, removing a television set, speakers, and laptop. The total value of property taken was $5,000. Heywood has an extensive criminal history, of about 76 convictions dating back to 2004, for offences of dishonesty, violence, breaching Court orders, and failing to comply with sentences. In setting a starting point of 15 months imprisonment for the burglary, the Judge noted the sentencing purposes of denunciation and deterrence. He considered that aggravating features of Heywood’s offending were the planning involved, knowing the victim would be away, and knowing where items were stored in the house, the forcible entry, and the impact on the victim. The Judge also noted a very clear breach of trust (given the relationship between Heywood and the victim, and the assistance the victim had previously given Heywood), and the fact that Heywood committed the burglary when he was on bail for other offending. The Judge then applied an uplift of four months to take account of Heywood’s previous burglary convictions, and for the “huge breach of trust” that had left Heywood’s supporter, friend, and godfather severely out of pocket. The Judge then allowed a discount of approximately 25 per cent (five months) for Heywood’s guilty plea, to arrive at an adjusted sentence of 14 months imprisonment. His Honour then referred to the sentence Heywood was serving (that is, the sentence imposed in February), and directed that the burglary sentence was to be cumulative on the earlier sentence. Heywood’s counsel argued that the 28-month cumulative sentence was wholly out of proportion to the gravity of Heywood’s overall offending, and suggested that had Heywood been sentenced on the burglary charge at the same time as he was sentenced on the other charges, it is likely that the burglary charge would have been taken as the lead offence, and that uplifts would have been applied in respect of the other offending, and that a sentence of 28 months imprisonment would not necessarily have been the result. The court considered the totality principle under section 85(2) of the Sentencing Act 2002 and concluded that the sentence of 28 months imprisonment was not wholly out of proportion to the gravity of Heywood’s overall offending. The appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence is dismissed.

Orders