[1] On 30 August 2022 Mr Lewis pleaded guilty to one charge of burglary.1 On 31 March 2023, in two separate decisions, Judge Krebs declined Mr Lewis’ application for a discharge without conviction2 and sentenced him to five months’ and two weeks home detention.3

[2] Mr Lewis appeals. He says he should have been granted a discharge without conviction. Alternatively, he says his sentence is manifestly excessive.

[3] Mr Lewis also applies for leave to adduce further evidence on appeal in the form of an Alcohol and Drug Report. The respondent opposes. There is no evidence as to why any such report was not (or could not have been) prepared prior to sentencing in the District Court. Nor is it apparent how the proposed evidence would be relevant, or add to the evidence already set out in Mr Lewis’ affidavit of 23 March 2023. For these reasons the application for leave to adduce further evidence is declined.

The offending

[4] During the evening of 26 June 2022 Mr Lewis drove his Toyota to a commercial kiwifruit orchard in Whanganui. He was towing a tandem trailer. He was with a female associate.

[5] The victim was part way through having a shed built on a small section of the property. Mr Lewis drove through an open gate to where the shed was being built. He and his associate placed $1,520.00 worth of building material on to the trailer. Mr Lewis then drove away.

[6] At approximately 3:15 am Police stopped Mr Lewis while he was towing the trailer and the stolen property. Mr Lewis must have told the Police that all was in order because the Police let him go.

[7] The supplies were later reported stolen. When Police executed a search warrant at Mr Lewis’ address they found the stolen building supplies in the backyard.

1      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2      Police v Lewis [2023] NZDC 6168.
3      Police v Lewis [2023] NZDC 6389.

Legal principles

Discharge without conviction

[8] Section 106 of the Sentencing Act provides that the Court may discharge an offender without conviction. A discharge under s 106 is deemed to be an acquittal.4 Section 107 sets a threshold for the Court’s discretion:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the…

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 Lewis v Police

Details

AGLC: Lewis v Police [2023] NZHC 1675
Case: [2023] NZHC 1675
Decision Date: 3 July 2023

CaseChat Overview and Summary

The appeal was heard by Robinson J in the High Court of New Zealand. The appellant, Mr Lewis, challenged the decision of the District Court which declined his application for a discharge without conviction and imposed a sentence of five months and two weeks of home detention for burglary. Mr Lewis argued that the consequences of a conviction would be disproportionate to the seriousness of his offence and that the sentence was excessive. The court was required to determine whether the District Court erred in declining Mr Lewis' application for a discharge without conviction under s 106 of the Sentencing Act 2002 and whether the sentence imposed was appropriate.

In assessing the proportionality of a discharge without conviction, the court identified three steps: determining the gravity of the offending, identifying the direct and indirect consequences of conviction, and considering whether those consequences were out of all proportion to the gravity of the offending. The court found that the offending was moderately serious, though perhaps at the lower end of that range. The court also found that the consequences of conviction were among the ordinary and foreseeable consequences of a burglary conviction and were not out of all proportion to the gravity of the offending. The court rejected Mr Lewis' appeal against the decision to decline a discharge without conviction. In relation to sentencing, the court found that a greater discount should have been given for Mr Lewis' addiction and efforts at rehabilitation. A discount of 50 per cent was appropriate, resulting in an end sentence of four months of home detention. The appeal against sentence was therefore allowed, and the original sentence was quashed and replaced with a sentence of four months of home detention.

In summary, the court dismissed Mr Lewis' appeal against the refusal of a discharge without conviction but allowed his appeal against sentence. The sentence of five months and two weeks of home detention was quashed and replaced with a sentence of four months of home detention.

Orders