Linford v Police - [2017] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-302 [2017] NZHC 2166

BETWEEN
JAMES GEORGE LINFORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 October 2017

Counsel:

A J Holland (on instructions from A C Cresswell) for Appellant
I S Ko for Respondent

Judgment:

31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

LINFORD v POLICE [2017] NZHC 2166 [31 October 2017]

Annabel Cresswell (Auckland) for Appellant
Kayes Fletcher Walker (Auckland) for Respondent

Introduction

[1] Mr Linford appeals a sentence of 26 months’ imprisonment imposed on him by Judge N Sainsbury on 17 August 2017.1

[2] A number of grounds of appeal were advanced in written submissions. However, Mr Holland, who appeared for Mr Linford before me, abandoned all but two of the grounds. The two grounds remaining are that the starting point was too high and that the uplift for Mr Linford’s history of criminal offending and his offending while on bail was excessive.

[3] The overall submission is that if I find the Judge to have erred in these respects, I will conclude that the end sentence is manifestly excessive.

Background

[4] Judge Sainsbury had to sentence on 18 charges. I reproduce the helpful table which was provided to me in the appellant’s written submissions:

Charge CRN Date/details of offence Sentence imposed

Obtains by

deception (less than

$500)
17092005201
18/09/16

The appellant (“A”) came into possession of equipment and sold it to Cash Converters

Reparation $350,

one month

Obtains by

deception (less than
$500)
17004001785
19/06/16

A came into possession of equipment and sold it

to Cash Converters

Reparation $450,

one month

Takes/obtains/use

credit card
17092002192
21/10/16 to 24/10/16

A used a stolen Q card and used it several times in three days

Reparation

$1,773.47, two years two months

Possession of

utensils for cannabis
16092013593
25/10/16

A was found in possession of a pipe for smoking cannabis
Three months

Possession of

utensils for methamphetamine
16092013961
25/10/16

A was found in possession of a pipe for
Three months

1 Police v Linford [2017] NZDC 18477.

smoking

methamphetamine

Possession of

methamphetamine
16092013592
25/10/16

A was found with one gram of methamphetamine
Three months

Resist police 16092013594
25/10/16

A swung his arms whilst being arrested
One month

Receives property

(over $1000)
17092007156
01/06/17

A came into possession of a stolen cellphone and Visa Debit Card

Two years, two

months

Take/obtain/use

credit card
17092007157
01/06/17

This charge is in relation to A obtaining the Visa debit card

Two years, two

months

Take/obtain/use

credit card
17092007192
01/06/17

A used the Visa debit card he received at a

petrol station

Reparation

$231.90, two years, two months

Theft ex car 17092001928
08/11/16

A broke into the victim’s

car and stole her belongings

Reparation $1,000,

two years, two months

Take/obtain/use

credit card
16092014763
17/11/16

A obtained a BNZ bank card

Two years, two

months

Take/obtain/use

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 Linford v Police

Details

AGLC: Linford v Police [2017] NZHC 2166
Case: [2017] NZHC 2166
Decision Date: 31 October 2017

CaseChat Overview and Summary

James George Linford appeals the 26-month imprisonment sentence imposed by Judge Sainsbury on 17 August 2017. The appellant contends that the starting point for his sentence was too high and that the uplift for his criminal history and offending while on bail was excessive. The court was required to decide whether the sentence was manifestly excessive given the totality of the appellant's offending as disclosed by the charges.

The court found that the starting point for the more serious dishonesty offending of 18 months' imprisonment was within the range available to Judge Sainsbury. Although there were four victims involved and persistent offending, the court noted that a higher starting point could have been set. Regarding the uplift for the appellant's previous criminal history and offending while on bail, the court found that the eight months uplift was within the range available to the Judge, although at the upper end of it. The court found the uplift to be justified as it served the purpose of deterring the appellant from continuing to offend despite being given the opportunity for rehabilitation while on bail. Ultimately, the court found that the end sentence of 26 months was within the range available to the Judge and was not manifestly excessive.

The appeal was dismissed.

Orders