Knock v Police - [2017] NZHC 910

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2017-443-7 [2017] NZHC 910

BETWEEN
WESLEY JOSEPH KNOCK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 May 2017

Counsel:

M S Boyd for Appellant
J E Bourke for Respondent

Judgment:

8 May 2017

JUDGMENT OF ELLIS J

[1] On 9 March 2017, following a sentence indication, Mr Knock was sentenced by Judge Sygrove to a total of 24 months’ imprisonment as a result of his conviction on the following charges:

(a) burglary;

(b) driving while disqualified (third or subsequent);

(c) driving with excess breath alcohol (third or subsequent); (d) dangerous driving; and
(e) shoplifting.1

1 He was convicted and discharged on charges of threatening behaviour and breach of release conditions.

KNOCK v POLICE [2017] NZHC 910 [8 May 2017]

[2] He now appeals that sentence.

Facts

[3] Mr Knock walked into a residential property in New Plymouth. He got into the car parked in the driveway and started it. He reversed at speed down the driveway colliding with the victim’s boundary fence and letterbox and drove off at speed.

[4] Mr Knock drove through various residential streets before turning onto State Highway 3. As he drove past an intersection he drove off the road and collided with a lamp post so hard that it was torn from its base and javelined through a road sign. He continued driving towards Waitara with sparks flying off the front left rim of the vehicle. Several members of the public called Police saying he was weaving across both sides of the road. The car was effectively written off. It was valued at $13,500.

[5] A short time later, he was located by Police in Waitara. He admitted to drinking alcohol, and a breath test produced a result of 873 micrograms per litre of breath. Checks revealed he was disqualified from driving at the time.

Sentencing in the District Court

[6] The sentencing followed a sentence indication given on 3 March 2017. The

Judge adopted:

(a) a 20 month starting point for the burglary, taking into account

Mr Knock’s previous similar convictions; and

(b)an uplift of 12 months for the driving offending, taking into account its serious nature and his previous driving convictions.

[7] The Judge said there were no mitigating factors and that Mr Knock had previously been given credit for his “age, intellectual disability and things in the past”.2 He was afforded a 25 per cent discount for guilty plea, resulting in the end sentence of 24 months’ imprisonment.

The appeal

[8] Mr Knock’s appeal was principally advanced on two relatively narrow

grounds.

[9] First, Ms Boyd said that although a 20 month starting point was within the available, more minor, “dwelling house” burglary range,3 it was at the highest end, and given the circumstances, a 12 month starting point could have been adopted, referring to O’Sullivan v Police.4

[10] Secondly (and independently of the first point), she said that although a starting point of 12 to 18 months would be…

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 Knock v Police

Details

AGLC: Knock v Police [2017] NZHC 910
Case: [2017] NZHC 910
Decision Date: 8 May 2017

CaseChat Overview and Summary

Wesley Joseph Knock appealed his 24-month imprisonment sentence imposed by Judge Sygrove for convictions of burglary, driving while disqualified, driving with excess breath alcohol, dangerous driving, and shoplifting. Knock argued that the sentence was disproportionately high considering the seriousness of the offences, particularly the burglary charge. He contended that the 20-month starting point for the burglary was too high and that the combined sentence of 24 months was excessive when considering the totality of the offending.

The court considered Knock’s arguments and assessed the appropriateness of the sentence. The judge rejected the argument that the starting point for the burglary was too high, noting that the car was stolen from a residential driveway, posing a significant risk of confrontation. The court found that the 20-month starting point was appropriate. Regarding the totality issue, the court held that the combined sentence of 24 months was within the appropriate range, as evidenced by similar cases where cumulative sentences were upheld.

The court concluded that the appeal should be dismissed. The sentence imposed by Judge Sygrove was appropriate and within the available sentencing range, considering the seriousness of the offences and the need to take into account the totality of the offending. The court found no grounds to alter the sentence.

Orders