Horne v Police - [2021] NZHC 2623

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000114

[2021] NZHC 2623

BETWEEN
ZANE BRYSON PETER HORNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 September 2021

Appearances:

P M Faletanoai-Evalu and J M Grainger for Appellant S J Mallett for Respondent

Judgment:

4 October 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 October 2021 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HORNE v NEW ZEALAND POLICE [2021] NZHC 2623 [4 October 2021]

Introduction

[1] The appellant, Zane Horne, was sentenced by Judge Couch to 25 months’ imprisonment in relation to one charge of burglary.1 He appeals that sentence on the ground it was manifestly excessive.

Background

[2] On 4 January 2020, Mr Horne went to an address in Addington. The victim was not at home at the time. Mr Horne smashed a bedroom window and gained entry to the house. He took a number of items including a laptop and a hard drive, the total value being more than $1,000. Before leaving the property, Mr Horne cut the CCTV cords at the front door.

District Court decision

[3] Judge Couch was both the trial Judge and the sentencing Judge. Based on his findings at trial he identified a number of aggravating factors including: the burglary was of the victim’s home and involved the unlawful presence in a dwelling house; the premises were secured and Mr Horne gained entry by breaking into a window; and the burglary occurred in the early evening when there was a significant risk of encountering the occupant.

[4] The Judge also found there was an “irresistible inference” that Mr Horne chose the victim’s home to burgle as he had previously been a guest there, some 10 days earlier over the Christmas period. It follows, the burglary was premeditated and, to a degree, involved a breach of the victim’s trust. A number of items were taken during the burglary and have not been recovered. Further, the effect on the victim has been serious and the burglary has continued to affect her for a long time.

[5] The Judge adopted a starting point of two years’ imprisonment. A five per cent uplift was applied to reflect Mr Horne’s significant criminal history, including eight convictions for dishonesty offending. The Judge found there were no mitigating

1 Police v Horne [2021] NZDC 14222.

factors that justified a reduction in sentence. This resulted in an end sentence of 25 months’ imprisonment.

Principles on appeal

[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau 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: [2021] NZHC 2623
Decision Date: 4 October 2021

CaseChat Overview and Summary

In Horne v Police, the High Court of New Zealand was tasked with determining whether the appellant's sentence of 25 months' imprisonment, imposed for a charge of burglary, was manifestly excessive. The appellant, Zane Horne, had broken into a dwelling house and stolen property, and he appealed the sentence on the basis that it was excessive. The court had to decide whether the sentence was justified by accepted sentencing principles and whether it was manifestly excessive.

The court considered the various aggravating factors identified by the sentencing judge, including the fact that the burglary involved entry into a dwelling house during a time when there was a significant risk of encountering the occupant, the premeditation of the crime, the breach of trust as Horne had previously been a guest at the victim's home, and the significant impact on the victim. The court also examined the range of starting points for burglary offences as identified in previous cases and concluded that the starting point adopted by the sentencing judge was within the available range. Furthermore, the court noted that the appellant did not challenge the uplift of one month for previous offending, which involved 38 convictions including eight for dishonesty-related offences. The court concluded that the sentence was within the range that could properly be justified by accepted sentencing principles.

The appeal was dismissed, and the sentence of 25 months' imprisonment was upheld. The court did not consider it appropriate to intervene and substitute its own views on sentencing, as the sentence being appealed was not manifestly excessive and was justified by the relevant sentencing principles. The court also noted that the purposes and principles of sentencing would not be met by a sentence less than imprisonment, and the appellant did not appear to have a home detention address.

Orders