Higgan v Police - [2021] NZHC 188

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-23

[2021] NZHC 188

DAMIAN RICHARD HIGGAN

v

NEW ZEALAND POLICE

Hearing: 16 February 2021

Appearances:

T E Hesketh for the Appellant

A M Barham for the Respondent

Judgment:

17 February 2021

JUDGMENT OF COOKE J

[1] Mr Higgan appeals a sentence of 22 months’ imprisonment following the entry of guilty pleas on the following charges:1

(a)Breach of Protection Order;2

(b)Burglary;3

(c)Receiving.4

1      New Zealand Police v Higgan [2020] NZDC 24642.
2      Family Violence Act 2018, ss 90(b) and 112(1)(a).
3      Crimes Act 1961, s 231(1)(a).
4      Crimes Act 1961, ss 246 and 247(a).

HIGGAN v NEW ZEALAND POLICE [2021] NZHC 188 [17 February 2021]

The offending

[2] The breach of protection order offence occurred on 16 July 2020. Mr Higgan and the victim had previously been in a relationship for 16 years and have one child together. Mr Higgan arrived at the victim’s address and approached the back door adjacent to the kitchen. When the door was open he remarked to a witness “it’s funny I can have a protection order against people, I can still walk in”. The victim heard his voice, came down the hallway and told him to go away. He left the house, got into a vehicle and drove away. This was his second conviction for breach of the protection order. In the month before this offence he had been sentenced to nine months’ supervision and two months’ community detention for the previous breach.

[3] Between 31 August and 13 October Mr Higgan then received a stolen motor vehicle valued at $5,000. He attempted to disguise its identity by changing the registration plates and the VIN number. The ignition barrel was missing and when he was spoken to he confirmed it was stolen.

[4] On 21 September he then entered a property. He drove into its driveway when looking for a place to steal items. He walked to the back of the property and opened an unlocked back door of the house. The door had access to a garage. He entered the garage and opened a large chest freezer and stole a large amount of frozen food. He also stole a tent and camping items. A witness arrived at the address and challenged him when he was leaving.

The grounds of appeal

[5] In imposing the sentence the burglary charge was adopted as the lead offence and a starting point of 18 months was adopted. An uplift of six months was imposed for the breach of protection order, and a further six month uplift was imposed for the receiving charge. Discounts of seven months for a guilty plea and one and a half months for remorse were given. A further uplift of one month was added in connection with the remission of fines. This made the total end sentence twenty-two months imprisonment.

[6] The appeal is brought pursuant to ss 244 and 250 of the Criminal…

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: [2021] NZHC 188
Decision Date: 17 February 2021

CaseChat Overview and Summary

The case of Higgan v Police involves Damian Richard Higgan appealing against his sentence of 22 months' imprisonment following guilty pleas on charges of breach of a protection order, burglary, and receiving stolen property. The appeal was heard by Cooke J in the High Court of New Zealand at Palmerston North. The appellant argued that the sentence was manifestly excessive, particularly due to the cumulative uplifts imposed for the additional offences.

The key legal issue before the court was whether the sentence imposed by the sentencing Judge was manifestly excessive, particularly considering the cumulative uplifts for each offence. The court had to determine whether the sentence was justified under the totality principle as outlined in the Sentencing Act 2002, which requires that the total period of imprisonment should not be disproportionate to the gravity of the overall offending.

The court's reasoning involved assessing the starting point and uplifts for each offence. The starting point of 18 months for the burglary charge was deemed appropriate given the nature of the offence. The six-month uplift for the receiving charge was also considered justified, as the stolen vehicle was disguised and the value of the property stolen was significant. The court found that the approach taken by the sentencing Judge to impose cumulative uplifts for each offence was within the appropriate sentencing range, particularly given the interrelated nature of the offences committed over a short period. The court concluded that while the sentence was at the higher end, it was not manifestly excessive and did not violate the totality principle.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was proportionate to the gravity of the offending and did not constitute a manifest error.

Orders