IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2023-483-000007
[2023] NZHC 1675
BETWEEN BRODIE LEWIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 June 2023 Appearances:
M McGhie for the Appellant J Liu for the Respondent
Judgment:
3 July 2023
JUDGMENT OF ROBINSON J
[Sentence appeal]
This judgment was delivered by me on 3 July 2023 at 10:30am.
Registrar/ Deputy Registrar
Solicitors:
M McGhie, Whanganui Crown Solicitor, Whanganui
LEWIS v NEW ZEALAND POLICE [2023] NZHC 1675 [3 July 2023]
[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…
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- Lewis v Police [2023] NZHC 1675
- Case
- [2023] NZHC 1675
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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