[2] He received a sentence of five years’ imprisonment, with a minimum non- parole period of two years and six months on the two charges of burglary, and concurrent sentences of three and four months’ imprisonment for the drink-driving. He was disqualified from driving for the drink-driving and the dangerous driving offences and convicted and discharged on the breach of parole conditions. He now appeals against the sentence of five years’ imprisonment for burglary. He does not appeal against the other sentences.

District Court Decision

[3] The District Court Judge, His Honour Judge Wade adopted the burglary of

19 May 2011 as the lead offence for the purposes of sentencing. He described how the burglary was undertaken and noted the nature and value of the property taken
before referring to the impact on the homeowner.

1 Police v Johnstone DC Gisborne CRI-2011-416-029, 11 August 2011.

[4] The Judge noted the appellant’s age (26 years old) and his lengthy record of previous convictions, including some 26 convictions for burglary and a previous sentence of four years imprisonment for burglary. The Judge said that the normal range within which sentencing for such burglaries would fall for a first offender would be a term of imprisonment of 15 to 18 months. However the Judge considered the maximum penalty for burglary (10 years’ imprisonment) and the appellant’s previous offending warranted a starting point of six years. With the appellant’s guilty plea taken into account the final sentence was one of five years’ imprisonment.

[5] The protection of the public required, in the Judge’s view, a minimum period

of imprisonment of half the sentence.

Submissions

For the appellant

[6] Mr Rishworth, who appeared for the appellant, focused his submissions on three points:

(a) That the starting point for the offending was too high and did not

correctly represent the appellant’s culpability;

(b)That the end sentence of five years imprisonment was manifestly excessive; and

(c) That the imposition of a minimum period of imprisonment was not warranted.

[7]…

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 Johnstone v Police

Details

AGLC: Johnstone v Police [2012] NZHC 551
Case: [2012] NZHC 551
Decision Date: 22 February 2012

CaseChat Overview and Summary

The appellant, David Johnstone, was sentenced to five years’ imprisonment by the District Court at Gisborne for two charges of burglary, among other charges. The appellant appealed against the sentence for burglary, arguing it was excessive and that the imposition of a minimum period of imprisonment was incorrect. The High Court allowed the appeal and reduced the sentence for burglary to three years and four months’ imprisonment. The imposition of a minimum period of imprisonment was also quashed.

The court considered the starting point for sentencing for the burglary offence, which both counsel agreed should be around two years imprisonment. The court noted that previous convictions and offending while on parole could justify an uplift on the starting point but determined that a one-year uplift was appropriate in this case. The court also considered related offending and imposed concurrent sentences for the other charges. The court took into account the appellant's guilty plea and rejected the argument for separate recognition of the appellant's remorse. The court found the final sentence of five years imprisonment was excessive and reduced it to three years and four months. The court also found the imposition of a minimum period of imprisonment was incorrect as the burglary offending was not of the most serious type and the purposes of a minimum period of imprisonment would be fulfilled within the reduced sentence.

Orders