This judgment was delivered by me on 9 November 2022 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LESTER v R [2022] NZHC 2945 [9 November 2022]
Introduction
[1] Following a sentence indication, Regan Lester pleaded guilty to a charge of burglary.1 While awaiting sentence on that charge he committed further offences of unlawfully interfering with motor vehicles,2 burglary,3 careless driving,4 and driving while disqualified.5 Following his guilty pleas to those additional charges, on 2 February 2022 he was sentenced in the District Court at Dunedin by Judge Turner to two years and two months’ imprisonment.6
[2] Mr Lester appeals this sentence. He says that the uplifts for offending while on sentence and on bail were too high. He also applied to admit a cultural report into evidence. He contends that the end sentence should have been in the range in which home detention could have been imposed.
Appeal out of time
[3]Mr Lester was sentenced on 2 February 2022.
[4]His appeal is undated. It was filed well out of time, on 2 June 2022.
[5] Ms Scally, who was not acting for Mr Lester at sentencing, is unable to explain the late filing of the appeal. It seems most likely that, following the sentencing, Mr Lester lost contact with his counsel and did not seek advice as to an appeal.
[6] Mr Smith, for the prosecution, takes no issue with leave being granted to appeal out of time. Accordingly, and not without some reluctance, I will grant leave.
1 Crimes Act 1961, s 231(1)(a) – maximum penalty of 10 years’ imprisonment.
2 Crimes Act, s 226(2) – maximum penalty of two years’ imprisonment.
3 Crimes Act, s 231(1)(a) – maximum penalty of 10 years’ imprisonment.
4 Land Transport Act 1998, ss 8 and 37(1) – maximum penalty of a fine of $3,000 and disqualification from holding or obtaining a driver’s licence for such period as the court thinks fit.
5 Land Transport Act, ss 5(1)(c), 32(1)(a) and 32(3) – maximum penalty of three months’ imprisonment or a fine of $4,500, and disqualification from holding or obtaining a driver’s licence for at least six months.
6 R v Lester [2022] NZDC 1647.
Facts
[7] Between 31 December 2020 and 5 January 2021, Mr Lester entered the victim’s property on Norwood Street, North Dunedin. Wearing gloves, he forced open a secure window to the office of the house. He climbed in the window and searched the house, opening drawers and moving items around. Mr Lester stole a vase from a table in the hallway, a television from…
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
AGLC
Lester v The the King [2022] NZHC 2945
Case
[2022] NZHC 2945
Decision Date
CaseChat Overview and Summary
Regan James Lester was sentenced to two years and two months’ imprisonment by the District Court for a number of offences, including two instances of burglary. He appeals his sentence, arguing that the uplifts for offending while on sentence and on bail were too high, and that a cultural report should have been admitted as fresh evidence. Lester argues that the sentence should have been in the range in which home detention could have been imposed. The appeal was allowed out of time. The court found that the uplifts for offending while on sentence and on bail were too high and should have been 10-15%, rather than 20%. However, the court found that the sentence imposed was not manifestly excessive, and the appeal was dismissed. The cultural report was not admitted as fresh evidence, as it was largely based on self-reporting and did not add greatly to the pre-sentence report.