Ivar v Police - [2021] NZHC 493

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000009

[2021] NZHC 493

BETWEEN
LANCE IVAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 March 2021

Appearances:

A M S Williams for Appellant P N M Brown for Respondent

Judgment:

12 March 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 March 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Introduction

[1] The appellant, Mr Ivar, pleaded guilty to a charge of burglary, four charges of theft (one of which is a representative charge), a charge of breach of a sentence of supervision, a charge of possession of a pipe for methamphetamine use, three charges of breaching District Court bail, one charge of breaching police bail and a charge of trespass.1 He was sentenced to 30 months’ imprisonment.2

1 Police v Ivar [2021] NZDC 428.
2 At [27]-[28].

IVAR v NEW ZEALAND POLICE [2021] NZHC 493 [12 March 2021]

[2] Mr Ivar appeals his sentence on the grounds there was excessive uplift for charges beyond the lead offence, the principle of totality was not considered, the uplift to reflect Mr Ivar’s previous convictions was too high, and the Judge failed to give credit to Mr Ivar for his personal circumstances and personal mitigating factors.

Facts

[3] On 3 November 2019 Mr Ivar entered The Warehouse at Richmond. He removed a bottle of perfume valued at $79 and hid it down his pants. Mr Ivar then went to the clothing section and removed a pack of two singlets valued at $14 and a pack of three pairs of underwear valued at $30. He removed the packaging from these items and hid them down his pants. Mr Ivar attempted to walk out through the entrance, avoiding the checkout area, without making any effort to pay for the items. He was challenged by a member of staff and gave the perfume back. When challenged on the other items he ran from the store.

[4] Between 3.30 pm and 6 pm on Friday 8 November 2019 Mr Ivar went to a residential address in Motueka. The people at the address were known to him. While the victims were out Mr Ivar entered the house by breaking a laundry window. He took a PlayStation 4, some PlayStation games and a security camera before leaving the address.

[5] On 12 December 2019 Mr Ivar went to the Pak ‘n Save premises in Northlands Mall in Christchurch. He selected two trays of porterhouse steak, valued at $51.94, placed them in the front of his pants and walked out of the store without paying for them. Mr Ivar was trespassed from Northlands Pak’nSave that day.

[6] On 8 March 2020 Mr Ivar was arrested in regard to the matters detailed above. While being searched, a pipe used to smoke methamphetamine fell to the ground and broke.

[7] On 9 August 2020 Mr Ivar went back to the Pak’nSave…

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 Ivar v Police

Details

AGLC: Ivar v Police [2021] NZHC 493
Case: [2021] NZHC 493
Decision Date: 12 March 2021

CaseChat Overview and Summary

The appellant, Mr Ivar, appealed his sentence of 30 months' imprisonment for multiple charges including burglary, theft, and breaching bail conditions. The appeal was heard by the High Court of New Zealand. The appellant contended that the District Court judge had erred in several respects: the uplift for charges beyond the lead offence was excessive, the principle of totality was not considered, the uplift for previous convictions was too high, and personal mitigating factors were not taken into account.

The court examined the principle of totality, which suggests that the overall sentence should not be out of proportion to the total offending. While the District Court judge did not explicitly consider this principle, the court found the total sentence of 30 months was not excessive for the combined offences, particularly given the burglary and multiple thefts. The court also found that the uplifts applied for the charges of theft, trespass, and failing to answer bail were appropriate. The six-month uplift for previous convictions was deemed reasonable given Mr Ivar's extensive criminal history. Lastly, the court concluded that no discount was warranted for Mr Ivar's methamphetamine addiction as it did not directly link to the majority of his offending. Similarly, no credit was given for lack of remorse or superficial commitment to change.

The appeal was dismissed, and the original sentence was upheld.

Orders