Martin v Police - [2016] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-216 [2016] NZHC 2094

BETWEEN
JOHN MARTIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 September 2016

Appearances:

A Ives for Appellant
A Park for Respondent

Judgment:

5 September 2016

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

MARTIN v NEW ZEALAND POLICE [2016] NZHC 2094 [5 September 2016]

[1] Mr Martin pleaded guilty in the District Court to two charges of burglary, one charge of being in possession of a pipe and a charge of being in possession of methamphetamine. On 24 May 2016, Judge P J Sinclair sentenced Mr Martin to concurrent terms of imprisonment of 28 months on the two burglary charges. On the other two charges she imposed concurrent sentences of one month each.1

[2] Mr Martin appeals to this Court against sentence. He contends the sentence was manifestly excessive because the Judge adopted a starting point that was too high, and then failed to apply discounts in respect of relevant mitigating factors.

The facts

[3] The facts underpinning the charges were contained in two summaries of fact with which Mr Martin took no exception. The first of these reveals that at about
8.25 pm on 12 July 2015, Mr Martin and two associates went to Kohimaramara. They jumped over a locked electronic gate and gained entry to a residential address by breaking a bedroom window. They then conducted an extensive search of both levels of the address. In doing so, they smashed a number of wall cavities, no doubt seeking to find items of value to steal.

[4] Eventually they smashed open a wall cavity in which they found a safe. They then used tools from the garage of the address to pry the safe from the bolts that were holding it to the ground. They took the safe outside the house and placed it in a recycling bin. They then dragged the bin up the driveway of the address, and tipped it out next to a parked motor vehicle belonging to a neighbour.

[5] A neighbour had heard noises coming from the address and alerted the police. When the police arrived, Mr Martin and his associates were sitting inside the neighbour’s vehicle. The safe was sitting on the ground beside the vehicle.

[6] The second set of charges arises out of an incident that occurred on the afternoon of 4 April 2016. At about 3.15 pm on that date, Mr Martin travelled in a motor vehicle with an associate to a residential area. He left the vehicle and climbed

up a drainpipe, thereby gaining entry to a house through an open window. He then ransacked the master bedroom of the address looking for items to steal. He eventually left the address carrying jewellery having a value of approximately
$100,000 and cash in various currencies totalling approximately $40,000.

[7] The police were alerted and the police helicopter began pursuing Mr Martin and his associate. They eventually apprehended the two men a short distance away. 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.

Keep reading for free

Create a free CaseChat account to read Martin v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2094
Decision Date: 5 September 2016

CaseChat Overview and Summary

The case of Martin v Police, heard in the High Court of New Zealand, concerns an appeal against the sentence imposed on John Martin for multiple burglary charges and possession of drugs. The appellant, Mr Martin, pleaded guilty to two charges of burglary, one charge of being in possession of a pipe, and another charge of being in possession of methamphetamine. The District Court sentenced Mr Martin to concurrent terms of imprisonment of 28 months on the burglary charges and one month on each of the other two charges. The appellant challenges the sentence, arguing that it was manifestly excessive as the judge adopted a starting point that was too high and failed to apply appropriate discounts for mitigating factors. The court was required to determine whether the starting point for the sentence was appropriate and whether the judge had correctly applied the discounts for mitigating factors.

In considering the starting point for the sentence, the court noted that both burglaries involved aggravating factors, such as premeditation and significant property damage. The court held that the starting point of three years imprisonment, while at the upper end of the range, was not outside the available range given the circumstances. As for the discounts for mitigating factors, the court found that the judge's decision not to grant additional discounts was balanced by the fact that Mr Martin committed the second burglary while on bail for the first offence. The court concluded that the judge had exercised her discretion appropriately in sentencing Mr Martin.

The appeal against the sentence was dismissed. The court found that the starting point and the overall sentence were appropriate, and the judge had correctly exercised her discretion in applying discounts for mitigating factors. The sentence imposed by the District Court was upheld.

Orders