Laine v Police - [2021] NZHC 1231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000110

[2021] NZHC 1231

BETWEEN
CJ MACDONALD LAINE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 May 2021

Appearances:

HN Kim for Appellant CE Best for Respondent

Judgment:

28 May 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 May 2021 at 3.30pm

Registrar/Deputy Registrar

Date……………………..

Solicitors: Kayes Fletcher Walker, Auckland To: H Kim, Auckland

LAINE v NZ POLICE [2021] NZHC 1231 [28 May 2021]

Introduction

[1] On 4 February 2021, Judge Wharepouri sentenced Mr Laine to 25 months’ imprisonment on two charges each of burglary1 and driving while suspended,2 and one charge each of the theft of property worth over $1,000,3 possession of cannabis,4 possession of methamphetamine5 and failing to appear.6

[2] Mr Laine now appeals (out of time) saying the sentence was manifestly excessive. In particular, he says an end point within the short-term sentence range should have resulted, and a sentence of home detention then imposed. The appeal is opposed, the Crown saying there is no error in Judge Wharepouri’s sentence.

Extension of Time

[3] Mr Laine was sentenced on 4 February 2021 but did not file his notice of appeal until 9 March 2021; so, three working days out of time.7 Ms Kim, counsel for Mr Laine, states that the delay was a result of Mr Laine’s transfer between prisons, postal delays and her inability to see him during a COVID-19 lockdown. The Crown, accepting this explanation, does not oppose an extension of time being granted. I accept that an extension ought to be granted and do so.

Background

Offending

[4] The charges for which Mr Laine was sentenced relate to four unconnected episodes in 2019 and 2020.

1      Crimes Act 1961, s 231(1)(a). Maximum penalty ten years’ imprisonment.
2      Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
3      Crimes Act 1961, ss 219 and 223(b). Maximum penalty seven years’ imprisonment.
4      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty three months’ imprisonment or a fine not exceeding $500.
5      Sections 7(1)(a) and 7(2). Maximum penalty six months’ imprisonment or a fine not exceeding
$1,000.
6      Bail Act 2000, s 38. Maximum penalty one year’s imprisonment or fine not exceeding $1,000.
7      See Criminal Procedure Act 2011, s 231(2).

[5] The first two incidents, chronologically speaking, occurred in June 2019. On 5 May 2019, Mr Laine had his driver’s licence suspended for a period of three months, having accrued an excess of demerit points. That period of suspension was accordingly to expire on 4 August 2019. However, on 1 June 2019, so only a few weeks after his licence had been suspended, Mr Laine was stopped by Police while driving on a road in Wellsford, thereby contravening his suspension. When the vehicle was searched, the Police found two zip lock bags containing a total of 2.36 grams of methamphetamine in…

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.

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Details

Case: [2021] NZHC 1231
Decision Date: 28 May 2021

CaseChat Overview and Summary

The appellant, Mr Laine, appeals the sentence of imprisonment imposed upon him by Judge Wharepouri. Mr Laine was sentenced to 25 months’ imprisonment on two charges each of burglary and driving while suspended, and one charge each of theft of property, possession of cannabis, possession of methamphetamine and failing to appear. The appeal was opposed by the Crown, who submits there is no error in the sentence. The appeal was heard by Fitzgerald J. The court considered the appeal on the basis of four submissions made by counsel for the appellant. First, the court considered whether the starting point adopted on the lead burglary charges was too high. Second, whether the uplift for other offending was excessive. Third, whether the uplifts for previous offending and offending on bail were excessive. Fourth, whether the end sentence was manifestly excessive. The court dismissed the appeal, finding that the sentence imposed was not manifestly excessive. The appeal against sentence is dismissed.

Orders