Horrell v Police - [2016] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-91 [2016] NZHC 820

BETWEEN
MICHAEL HORRELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2016

Counsel:

M Ryan for Appellant
C Cross for Respondent

Judgment:

28 April 2016

RESULT JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 28 April 2016 at 10 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Meredith Connell, Auckland

HORRELL v NEW ZEALAND POLICE [2016] NZHC 820 [28 April 2016]

[1] On 26 April 2016 I delivered a result judgment in which I allowed Mr Horrell’s appeal against sentence and quashed the sentences imposed in the District Court. In their place I imposed a total sentence of 8 months’ imprisonment and directed the payment of $600.00 reparation. My reasons for doing so now follow.

[2] On 26 February 2016 Judge Sinclair imposed concurrent sentences of: (a) 13 months’ imprisonment on six dishonesty charges; and (b) three months imprisonment on a driving while disqualified charge. Mr Horrell was also convicted and discharged on a careless driving charge; disqualified from driving for one year and ordered to pay reparation of $2000.

[3] Mr Horrell did not appeal against the sentence for the careless driving offence or the period of disqualification from driving. He appealed against the remainder of the sentences on the basis that they were manifestly excessive and that Judge Sinclair erred in imposing an order for reparation of $2000.

Facts

[4] Mr Horrell was sentenced in relation to eight charges, which in turn related to two separate instances of offending.

Driving offences

[5] On 8 August 2015, Mr Horrell was driving a vehicle near Te Aroha township in the Waikato. He lost control of his vehicle, which continued approximately 55 metres along the verge before hitting a road side culvert and rolling on to its roof. The road and weather conditions at the time were good and Mr Horrell was unable to explain why he had crashed his vehicle.

[6] At the time when the accident occurred, Mr Horrell was indefinitely disqualified from holding or obtaining a driver’s license.

Taking documents for pecuniary advantage

[7] On 30 August 2015, Mr Horrell visited a neighbouring property where the victim resided. The victim opened the door and Mr Horrell entered the house, where unbeknownst to the victim, Mr Horrell gained access to the victim’s debit card. He then left the premises in a vehicle with an unknown associate.

[8] Later that night,1 Mr Horrell used a BNZ Visa Debit card belonging to the victim in two separate paywave transactions at a Z Energy petrol station. The total amount of money transferred was $58.80.

[9] Mr Horrell and his unknown associate then travelled to a different Z Energy petrol station, where he used a BNZ Bank card belonging to the victim to withdraw
$600 cash from an ATM machine.

[10] Approximately three hours later, Mr Horrell’s associate attempted to use the victim’s BNZ Visa Debit card to…

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 Horrell v Police

Details

AGLC: Horrell v Police [2016] NZHC 820
Case: [2016] NZHC 820
Decision Date: 28 April 2016

CaseChat Overview and Summary

Michael Horrell appealed against his sentence, arguing that it was manifestly excessive and that the amount of reparation imposed was incorrect. The appeal was heard by Duffy J in the High Court of New Zealand on 26 April 2016. The appeal was allowed, and the sentences imposed by Judge Sinclair were quashed, with the court imposing a total sentence of 8 months’ imprisonment and directing the payment of $600 in reparation. The court found that Judge Sinclair had erred by considering the withdrawn charge of theft and by imposing an order for reparation of $2000. The court considered that a starting point of six months’ imprisonment for the dishonesty offences was appropriate, with a further uplift of three months for the disqualified driving offence. The court also found that an appropriate order of reparation would require Mr Horrell to pay between $600 and $608 to the victim.

The legal issues the court was required to decide were whether there was an error in the sentence imposed on conviction and whether a different sentence should be imposed. The court found that there was an error in the sentence imposed by Judge Sinclair and that a different sentence should be imposed. The court found that Judge Sinclair had erred in considering the withdrawn charge of theft and in setting the amount of reparation. The court also found that the starting point for the dishonesty offences should have been six months’ imprisonment, with an uplift of three months for the disqualified driving offence. The court found that an appropriate order of reparation would require Mr Horrell to pay between $600 and $608 to the victim.

Orders