Hindmarsh v Police - [2019] NZHC 160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-338

[2019] NZHC 160

BETWEEN
TROY WAAKA HINDMARSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 February 2019

Counsel:

N Bond for Appellant

C D Piho for Respondent

Judgment:

15 February 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 February 2019 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Public Defence Service (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

HINDMARSH v POLICE [2019] NZHC 160 [15 February 2019]

Introduction

[1] Mr Hindmarsh appeals a sentence of three years and seven months’ imprisonment imposed on him by Judge JC Moses on 19 September 2018.1 Mr Hindmarsh bases his appeal on the ground the end sentence is manifestly excessive.

[2] The appeal is brought under Part 6 of the Criminal Procedure Act 2011 as a first appeal against sentence. In order to succeed, Mr Hindmarsh must satisfy me there is an error in the sentence such that a different sentence should be imposed. This test will be satisfied if the sentence of three years and seven months’ imprisonment is manifestly excessive.

Background

[3] Mr Hindmarsh was for sentence on 23 charges relating to a number of different incidents. Crown counsel provided me with a succinct summary of the offending which I adopt and reproduce:

Charge Offending summary

Unlawfully takes motor vehicle (ULTMV), reckless driving, failing to stop, failing to stop (aggravated), driving under the influence of a drug, possession of cannabis
On 17 May 2017, the appellant offered to help a stranger park their vehicle. Once in control of the vehicle, he drove away. When pursued by police, he refused to stop, crossed the centre line onto oncoming traffic, and exceeded the speed limit (reaching speeds up to 150km). He was arrested after colliding into an unoccupied stationary police vehicle and power pole (causing over $20,000 in damage), and found to be in possession of cannabis. He was later found to be under the

influence of drugs. The victim’s $18,000 car was uninsured.

Theft (x2) and possession of methamphetamine pipe
On 12 September 2017, the appellant stole property worth

$19.34 from Pak n Save Sylvia Park and as a result was trespassed from Sylvia Park Mall. Around 30 minutes later he returned to Smart Sushi Sylvia Park and stole further property worth $9.50. The appellant was arrested by Police and found

with a glass pipe on him.

Theft
On 27 September 2017, the appellant stole a Narva light worth

$153 from Repco.

Burglary x3 and theft
On 3 November 2017m at around 5.45 pm, the appellant entered Farmers New Lynn and took property worth $789.93. He was stopped outside by security staff.

On 2 December 2017, at around 5.00 pm, the appellant entered a residential house and broke into two locked rooms inside,

taking numerous items. On 4 December 2017, he returned to

1 Police v…

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: [2019] NZHC 160
Decision Date: 15 February 2019

CaseChat Overview and Summary

Mr Hindmarsh appeals against the sentence of three years and seven months’ imprisonment imposed on him by Judge JC Moses on 19 September 2018, arguing that the sentence is manifestly excessive. The appeal was brought under Part 6 of the Criminal Procedure Act 2011 as a first appeal against sentence. The court had to determine whether the sentence of three years and seven months’ imprisonment was manifestly excessive and if it should be altered. Mr Hindmarsh's appeal hinged on whether the starting point adopted by the District Court was excessive, which would render the sentence manifestly excessive. The court held that the appeal must fail because the sentence was not manifestly excessive; it was lenient. The starting point adopted by the District Court was at the lowest end of the range and, even taking into account totality, a starting point of five years’ imprisonment was appropriate. The uplift of 10 percent for Mr Hindmarsh’s criminal record was light, and an uplift of 20 percent to 25 percent would be unexceptional given his criminal history. The court also found that the reductions for personal circumstances and for the entry of pleas of guilty were generous but appeared appropriate. The appeal was dismissed, and the sentence upheld.

Orders