Jackson v Police - [2019] NZHC 1123

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-35

[2019] NZHC 1123

BETWEEN
OWEN ANTHONY JACKSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 May 2019

Appearances:

AND Garrett for Appellant K Courteney for Respondent

Judgment:

22 May 2019

JUDGMENT OF MANDER J

Introduction

[1] In June last year, Judge Couch sentenced the appellant, Owen Jackson, to 25 months’ imprisonment on two charges of burglary, a charge of breaching release conditions, a charge of failure to answer bail and of possessing methamphetamine. Mr Jackson appeals his sentence alleging it was manifestly excessive when compared with the sentence imposed on his co-defendant for the lead offence of burglary.

Facts

[2] In the early hours of 17 September 2017 Mr Jackson and an associate, Rockie Riley, drove to the Whakatu Industrial Park (the Park) in Hastings. They entered the Park in a van towing a trailer. Mr Jackson drove the van to the key card scanner and entered a PIN which opened the gates.

JACKSON v NEW ZEALAND POLICE [2019] NZHC 1123 [22 May 2019]

[3] Mr Jackson drove the van to the back of a warehouse and stopped at one of the containers situated there. The two men used bolt-cutters to gain access to the container by cutting through a padlock. They took several boxes of almond and coconut milk, boxes of milk and juice and in excess of 160 bottles of protein drinks. They also located and took three motor vehicle shrouds from metal bins behind the warehouse valued at $1,000 each.

[4] Mr Jackson and Mr Riley then continued driving around the Park and stopped outside the back of another building. They took 306 bottles of water before driving away.

[5] Between 12 October and 2 November 2017 Mr Jackson failed without reasonable excuse to report to his probation officer as required under his conditions of release. In December 2017, he failed to attend court at the District Court at Hastings in breach of his bail.

[6] On 3 April 2018 Mr Jackson was a passenger in a vehicle stopped by police. It was discovered that Mr Jackson had two active warrants for his arrest. A search of the vehicle revealed 0.2 g of methamphetamine inside a backpack. Mr Jackson admitted to police that the methamphetamine was his and was for his own consumption.

District Court decision

[7] Judge Couch considered Mr Jackson had a “significant relevant [criminal] history”. In particular, the Judge noted he had three previous convictions for burglary, the most recent being from 2015, and also noted two previous “serious theft” convictions. Also highlighted by the Judge were Mr Jackson’s previous breaches of release conditions and community-based sentences and two previous failures to answer bail, although these were more than 10 years old.

[8] The Judge took the two burglary charges as the lead offences. This offending was described as serious, and it was noted that it involved a very high degree of premeditation owing to 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.

Continue reading Jackson v Police

Details

AGLC: Jackson v Police [2019] NZHC 1123
Case: [2019] NZHC 1123
Decision Date: 22 May 2019

CaseChat Overview and Summary

Owen Jackson appealed against his sentence, arguing that it was manifestly excessive when compared to the sentence imposed on his co-defendant for the primary offence of burglary. Jackson was sentenced to 25 months' imprisonment for two charges of burglary, a charge of breaching release conditions, a charge of failure to answer bail, and possession of methamphetamine. Jackson's co-defendant, Riley, was sentenced to 12 months' intensive supervision and three months' community detention for three charges of burglary, and a charge of breaching a protection order. Jackson argued that the disparity in sentences between him and Riley was unjustifiable, and that the principle of parity required similar sentences for similar offences.

The court considered whether the sentence imposed on Jackson was manifestly excessive and whether the disparity in sentences between Jackson and Riley justified an adjustment to Jackson's sentence. The court noted that while the sentence imposed on Jackson was within the range available to the sentencing judge, the significant disparity in sentences between Jackson and Riley was unjustifiable in the absence of any appreciable justification. The court found that the independent observer would consider that something had gone wrong with the administration of justice in the absence of any justification for the disparity in the sentences imposed.

The court found that the sentence imposed on Jackson should be reduced by five months to ameliorate the disparity between the sentences imposed on Jackson and Riley. The court substituted Jackson's sentence of 25 months' imprisonment with a term of imprisonment of 20 months. The appeal was allowed, and Jackson's sentence was quashed and substituted with a term of imprisonment of 20 months.

Orders