Luke v Police - [2013] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-026 [2013] NZHC 3175

BETWEEN CHEYNE ROBERT LUKE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 November 2013

Counsel: J Mooney for Appellant
AWM Britton for Respondent

Judgment: 29 November 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors: Crown Solicitors, New Plymouth
Nicholsons, New Plymouth

LUKE v POLICE [2013] NZHC 3175 [29 November 2013]

Introduction

[1] On 5 July 2013, Mr Luke pleaded guilty in the New Plymouth District Court to two charges of burglary, one charge of receiving property and one charge of possession of cannabis. He was sentenced by Judge Roberts to imprisonment for a term of one year three months on the burglary charges and a concurrent sentence of twelve months on the receiving charge. He was convicted and discharged on the charge of possession of cannabis.

[2] Mr Luke appeals against sentence on the grounds that the starting point of twenty months imprisonment adopted by the Judge was too high, leading to a sentence that was manifestly excessive. In written submissions, it had also been contended that the Judge erred in rejecting home detention as a sentencing option. However, that aspect of the appeal is not proceeded with as Mr Luke has served five months and three weeks of his prison sentence and the substitution of a sentence of home detention is not a practicable option.

Facts

[3] The burglaries both took place in the early hours of the morning of 6 April

2013. A community hall in Bell Block was broken into. A donation box in the main hall was broken open and some coins stolen. The intruder also broke into a locked store room and stole two projectors valued at $1,000, the property of a church which used the premises. The second burglary was of a dairy in Bell Block. The front door was forced and cigarettes, tobacco and lighters to the value of $3,700 were taken.

[4] When Mr Luke’s home was searched on 10 April, the police found two grams of cannabis, several packets of cigarettes and lighters stolen from the dairy and the two projectors taken from the community hall. Mr Luke was also found in possession of a Smart ticket device and charger that had been stolen in a burglary of the Bell Block community police station on the night of 8 and 9 December 2012. The discovery of those items led to the receiving charge.

[5] The impact of the burglary on the dairy owner was particularly severe. He had just started a new business. His stock was not insured. In his victim impact statement he said he did not know how he was going to get over the loss.

Sentencing decision

[6] In his sentencing remarks Judge Roberts reviewed a pre-sentence report which had concluded with a recommendation of imprisonment. At age 22, Mr Luke had twelve previous convictions. The most serious was of assault with intent to injure for which Mr Luke was sentenced to six months home…

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 Luke v Police

Details

AGLC: Luke v Police [2013] NZHC 3175
Case: [2013] NZHC 3175
Decision Date: 29 November 2013

CaseChat Overview and Summary

The case of Luke v Police involves an appeal against sentence by the appellant, Cheyne Robert Luke, who pleaded guilty to two charges of burglary, one charge of receiving property, and one charge of possession of cannabis. He was sentenced to imprisonment for a term of one year three months on the burglary charges and a concurrent sentence of twelve months on the receiving charge. Luke appeals against the sentence, arguing that the starting point of twenty months imprisonment adopted by the sentencing judge was too high and led to a sentence that was manifestly excessive. Additionally, it was argued that the judge erred in rejecting home detention as a sentencing option, although this aspect of the appeal is not proceeded with as it is not practicable for Mr Luke to be substituted with a sentence of home detention. The primary legal issue the court had to decide was whether the starting point of imprisonment adopted by the sentencing judge was too high, leading to a sentence that was manifestly excessive. The court considered the totality of the offending, the lack of any previous burglary convictions, and the circumstances of the case in determining the appropriate starting point. The court also had to consider whether home detention was an appropriate sentencing option, taking into account the seriousness of the offending, the lack of remorse and interest in rehabilitation, and the lack of family support.

The court found that the starting point adopted by the sentencing judge was too high in relation to cases which appeared to involve broadly similar levels of culpability. The court considered that a starting point of 15 months adequately captured the gravity of the offending in its totality, taking into account the receipt of the proceeds of a third burglary. Applying the 25 per cent discount for an early guilty plea adopted by the sentencing judge, a sentence of 11 months imprisonment results. The appeal is allowed, and the sentence of 15 months imprisonment on the burglary charges is quashed and a sentence of 11 months substituted. The sentence of 12 months imprisonment on the receiving charge is quashed and a concurrent sentence of nine months imprisonment substituted.

Orders