Hunter v Police - [2012] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-329 [2012] NZHC 3196

BETWEEN JASON WAYNE HUNTER Appellant

ANDTHE POLICE Respondent

Hearing: 20 November 2012

Appearances: I M Stewart for appellant
J Pridgeon for the respondent

Judgment: 29 November 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 12 pm on Thursday 29 November 2012

Solicitors:
Public Defender Northern, Ina.stewart@justice.govt.nz
Crown Solicitor Auckland Jessica.pridgeon@meredithconnell.co.nz

HUNTER V POLICE HC AK CRI 2012-404-329 [29 November 2012]

[1] Mr Hunter appeals against a sentence of two years and four months imprisonment imposed upon him in the Papakura District Court on 7 September
2012 on three charges of receiving, one of attempted burglary, one of breach of home detention, and one of theft. He argues that the sentence is manifestly excessive. It is necessary to set out the relevant offending and procedural background in some detail.

Background

[2] On 3 July 2012, the appellant, having pleaded guilty, appeared before Judge McAuslan in the Papakura District Court for sentence on three charges of receiving, and one of attempted burglary.1 He was sentenced to nine months home detention. Rather than obeying the home detention condition requiring him to go directly to his home detention address, Mr Hunter went from the District Court to the Farmers Store in Papakura, where he stole two pairs of underpants. He was charged with theft of the underpants and with breach of his home detention condition. Bail was opposed. The Probation Service applied to cancel the home detention sentence imposed by Judge McAuslan and to substitute a more appropriate sentence.2

[3] Mr Hunter pleaded guilty to the fresh charges of breach of home detention condition and theft. On 7 September 2012, Judge Andree Wiltens cancelled the sentence of home detention and imposed a sentence of 28 months imprisonment on all of the outstanding charges, that is, one charge of attempted burglary, three of
receiving, one of breach of the home detention condition, and one of theft.3

The burglary and receiving charges

[4] Each of the three charges of receiving was connected with commercial burglaries committed in Auckland between June and August 2011. On the night of
19 June 2011, the premises of Ocean Hunter, a retail diving store, were burgled. The

1 Police v Hunter DC Papakura CRI-2011-055-2653, 3 July 2012.
2 Sentencing Act 2002, s 80F(1)(a).
3 Police v Hunter DC Papakura CRI-2011-055-2653, 7 September 2012,

offenders stole diving equipment including wet suits, dive masks and snorkels from a shipping container next to the building. Some of this property was recovered at the appellant’s address. The total value of the diving gear and fishing material taken from Ocean Hunter was $3,845. At the time of the sentencing hearings, the District Court was mistakenly told that the value of the stolen property was about $37,000.

[5] On the night of 14 July 2011, the premises of Supercheap Auto in Takanini were burgled. The offenders stole approximately…

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 Hunter v Police

Details

AGLC: Hunter v Police [2012] NZHC 3196
Case: [2012] NZHC 3196
Decision Date: 29 November 2012

CaseChat Overview and Summary

Jason Wayne Hunter appeals a two years and four months imprisonment sentence imposed on him in the Papakura District Court for multiple charges including receiving, attempted burglary, breach of home detention, and theft. Hunter argues that the sentence is manifestly excessive. The court outlines the offending and procedural background in detail. Hunter was initially sentenced to nine months home detention but breached this by committing theft and breaching his home detention condition. The Probation Service applied to cancel the home detention sentence and substitute a more appropriate sentence. Hunter pleaded guilty to the new charges, and the District Court Judge cancelled the home detention sentence, imposing a sentence of 28 months imprisonment for all charges. Hunter's appeal to the High Court focused on the starting point for the sentence, the value of the stolen goods, and the cumulative sentence for breach of home detention. The High Court found that the resentencing Judge should have started afresh and not been bound by the previous Judge's approach. The High Court also found the starting point of two years six months imprisonment was too high and that an appropriate starting point would be 18 months imprisonment. However, the court upheld the cumulative sentence of six months for breach of the home detention condition as appropriate.

The appeal was allowed, and the sentence was quashed. The court substituted a sentence of 19 months imprisonment, taking into account a starting point of 18 months imprisonment on the receiving and attempted burglary charges, adding a cumulative sentence of eight months imprisonment for breach of home detention, and deducting a discount of a little over 25% for Hunter's early guilty pleas. The concurrent sentence of one month imprisonment for theft remains undisturbed.

Orders