King v Police - [2014] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-004-000288 [2014] NZHC 2946

BETWEEN
SHANNON KING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 November 2014

Appearances:

H F Brown and C B Wilkinson-Smith for Appellant
L M MIlls for Respondent

Judgment:

24 November 2014

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

KING v NEW ZEALAND POLICE [2014] NZHC 2946 [24 November 2014]

Introduction

[1] Mr King was sentenced by Judge Lovell-Smith in the District Court at Manukau on 31 July 2014 to a total term of three years and six months’ imprisonment, after he pleaded guilty to two charges of burglary.1 He now appeals against the sentence.

Background facts

[2] The background facts are uncontested, and described in detail in the Judge’s sentencing notes. At about 10:30 pm on 9 November, at Clarks Beach, Mr King entered a residence through a closed but unlocked back door. The next morning, the home owner found a bag on the kitchen table that contained a laptop from within the address, a wallet from a vehicle that had been parked at the address, and a medicines container inside it. Shoes, which did not belong to any of the occupants, were also found at the back door.

[3] At around 12:30 am on 10 November, another address in Clarks Beach was the subject of a burglary. In this case, the victim noticed a person, (later identified as Mr King), standing at the end of her bed. She thought that the person was her husband and she called out. Mr King exited the room via a ranchslider, and the victim realised it was not her husband. Her husband then attempted to find Mr King, but could not find him.

[4] No items were taken from either address and no property was damaged.

District Court sentencing

[5] The Judge considered the pre-sentence report and noted that Mr King has 45 convictions for burglary. Her Honour noted that Mr King had received both community-based sentences and custodial sentences for his prior offending, and had clearly not been deterred from reoffending. The Judge noted that the
recommendation of the pre-sentence report was for a sentence of imprisonment.

1 New Zealand Police v King DC Manukau CRI-2014-057-000016, 31 July 2014 at [2] – [4].

[6] After considering the submissions of counsel, the Judge recognised that Mr King had been employed since 2012. A letter to the Court from his employer was very positive, describing Mr King as an enthusiastic and committed employee (amongst other things). The employer had wanted to be present, but was not able to attend the sentencing. The Judge also considered it significant that Mr King had been attending the Huakina Development Trust for an anger management programme. A full report was provided by the Trust, and the Judge considered it significant that a representative of the Trust was present at the sentencing.

[7] The Judge then considered the purposes and principles of the Sentencing Act

2002 before considering the case of R v…

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 King v Police

Details

AGLC: King v Police [2014] NZHC 2946
Case: [2014] NZHC 2946
Decision Date: 24 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Shannon King, the appellant, brought an appeal against his sentence before Andrews J. King had been sentenced by Judge Lovell-Smith in the District Court at Manukau to a total term of three years and six months’ imprisonment after pleading guilty to two charges of burglary. King's appeal against his sentence was heard on 24 November 2014, with H F Brown and C B Wilkinson-Smith representing the appellant and L M MIlls representing the respondent. The judgment was delivered orally on the same day.

The appeal hinged on the appropriate starting point for the sentence, which was contested by the appellant's counsel. The key legal issue was whether the starting point of six years’ imprisonment, as determined by the District Court, was within the appropriate range given the circumstances of the case. The appellant argued that the starting point was too high, and the methodology adopted by the sentencing judge placed too much emphasis on previous convictions for dishonesty. The respondent did not contest the methodology but agreed that the starting point might be higher than necessary.

Andrews J considered the cases of Arahanga v R, Skipper v R, and Keen v R to determine the appropriate starting point. After comparing the facts and the severity of the offenses, Andrews J concluded that the starting point should be closer to that in Keen v R, which was two years and six months’ imprisonment. The judge accepted that an uplift of 12 months for King’s criminal history was appropriate, bringing the sentence to three years and six months’ imprisonment. However, the judge did not interfere with the discounts given by the sentencing judge for rehabilitation efforts and the early guilty plea. The final sentence, after applying these discounts, was two years’ imprisonment.

The appeal was allowed, and the sentence of three years and six months’ imprisonment was quashed, substituted with a sentence of two years’ imprisonment.

Orders