Ireland v Police - [2013] NZHC 318

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000452 [2013] NZHC 318

BETWEEN GEORGE IRELAND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 25 February 2013

Appearances: J R Smith for Appellant
I S Auld for Respondent

Judgment: 25 February 2013

ORAL JUDGMENT OF VENNING

Solicitors: Crown Solicitor, Auckland
Dyer Whitechurch Lawyers, Auckland

Copy to: J Smith, Barrister, Auckland

GEORGE IRELAND V NEW ZEALAND POLICE HC AK CRI-2012-404-000452 [25 February 2013]

[1] On 12 December 2012, having pleaded guilty to five charges of burglary, three of unlawfully taking a motor car, two of breaching bail and one of assault of male on female, the appellant was sentenced by Judge Treston in the District Court at Auckland to 18 months’ imprisonment. The appellant appeals against that sentence. The appeal is advanced on the basis that the sentence was manifestly excessive for
two principal reasons:

first, that the Judge was misled by the contents of the probation report.

Home detention was the appropriate sentence, even though it was not supported by the report. Related to that issue the Judge placed undue weight
on the appellant’s previous convictions; and

second, that the sentence lacked parity with a sentence imposed on a co-

offender.

[2] The offending the appellant was sentenced on was summarised by Judge

Treston as follows:

(a) 7 January 2012, assault on a female (that is the appellant’s partner),

who supports the appellant now; (b) 24 January 2012, breach of bail; (c) 3 February 2012, breach of bail;
(d)2 March 2012, burglary, the appellant smashed his way into a house and took a laptop;

(e) 6 March 2012, unlawfully taking a motorcar;
(f) 18 March 2012, unlawfully taking a motorcar by smashing a window; (g) 5 April 2012, a burglary with others, smashing a front door off its

hinges. A laptop was taken.

(h)5 April 2012, a separate address, jemmying a sliding door, taking two laptops and a video camera;

(i)7 April 2012, unlawfully taking a motorcar by popping the front window;

(j)8 April 2012, burglary, smashing the door with a crowbar. The appellant waited outside on that occasion;

(k) 8 April 2012, a further and separate charge of burglary

[3] The maximum sentence for burglary is 10 years. The Judge, having recited the brief summary of offending above and noting the maximum sentence, also referred to the appellant’s previous convictions in the District Court for unlawful taking and interfering with a vehicle and also the 11 burglaries and 10 unlawfully taking or getting into a motor vehicle, which were noted in the Youth Court.

[4] The Judge then considered the appellant’s personal circumstances and counsel’s request for a further home detention or community detention report. The Judge declined to adjourn the matter for further reports and concluded imprisonment was the least restrictive outcome available to the Court. The Judge took a starting point of two years’ imprisonment to reflect the totality of the offending. He then imposed a sentence of 18 months for the burglary offending with 15 months on the…

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: [2013] NZHC 318
Decision Date: 25 February 2013

CaseChat Overview and Summary

George Ireland was sentenced to 18 months' imprisonment for a series of burglaries and other related offences. The appellant appealed against the sentence, arguing that it was manifestly excessive due to the Judge's reliance on a probation report and the lack of parity with a co-offender's sentence. The court considered whether the deficiencies in the probation report led to an error on the part of the Judge and whether the sentence lacked parity with the co-offender's sentence. The court found that the Judge did not fall into error in relation to the contents of the pre-sentence report, and that the sentence imposed on the co-offender was unduly lenient. However, the court accepted that some adjustment to the sentence was required to reflect the apparent imbalance. Therefore, the appeal was allowed to that limited extent, and the appellant was sentenced to imprisonment for 12 months on the burglary charges, nine months on the unlawful taking, six months on the assault and three months on each of the breach matters, all to be served concurrently.

The High Court of New Zealand considered an appeal by George Ireland against his sentence of 18 months' imprisonment. The appellant argued that the sentence was manifestly excessive due to the Judge's reliance on a probation report and the lack of parity with a co-offender's sentence. The court found that the Judge did not fall into error in relation to the contents of the pre-sentence report, and that the sentence imposed on the co-offender was unduly lenient. The court accepted that some adjustment to the sentence was required to reflect the apparent imbalance. Therefore, the appeal was allowed to that limited extent, and the appellant was sentenced to imprisonment for 12 months on the burglary charges, nine months on the unlawful taking, six months on the assault and three months on each of the breach matters, all to be served concurrently. The appellant was to surrender to the Auckland Central Police Station at 9.00 am the next day.

Orders