Mathias v Police - [2018] NZHC 1910

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000054

[2018] NZHC 1910

BETWEEN
PAUL ALURED MATHIAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 July 2018

Appearances:

S G Bailey for Appellant

S Bicknell Young for Respondent

Judgment:

30 July 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 16 May 2018 Judge Ruth sentenced Paul Mathias to two years and three months’ imprisonment on charges of burglary, receiving, possession of instruments for burglary and failing to carry out obligations regarding the Search and Surveillance Act 2012.

[2]Mr Mathias appeals that sentence on the basis that it is manifestly excessive.

Background

[3] On the afternoon of 13 April 2017, a townhouse in Staveley Street, Avonhead, was broken into by forcing a downstairs ensuite window open. The property stolen included electronics, jewellery, alcohol and foreign currency, and had a total value of
$12,510. The currency included 6.8 million Indonesian rupiah and $AUD500.

MATHIAS v NEW ZEALAND POLICE [2018] NZHC 1910 [30 July 2018]

[4] The appellant’s customer account at a money exchange at Riccarton Mall was used at 5.25 pm the same day, to exchange 6.75 million Indonesian rupiah for $NZ650 and $AUD225.

[5]The appellant pleaded guilty to receiving based on these facts.

[6] Overnight on 22-23 October 2017, a townhouse in Wharenui Road, Riccarton, was broken into by forcing a downstairs toilet window open. The tenants of the house had recently moved out, but furniture and household items belonging to the owner were left. Property taken included a toolbox, two blankets, towels, cleaning products, a washing basket and a basket from a shelving unit, to a total value of $481. The property owner also believes that whoever broke into the property used a shower and slept in one of the beds. Police found fingerprints belonging to the appellant in the property.

[7]The appellant pleaded guilty to burglary based on these facts.

[8] On 15 January 2018, the appellant arranged for his mother to obtain and return various items to the police that were stolen during this burglary. The tool box and the majority of the tools that were in it, along with the basket from the shelving unit, are still missing, to a value of $190.

[9] On 7 December 2017, police spoke to the appellant about the burglaries, with which he initially denied involvement. Under warrant, police searched the appellant’s vehicle and found a balaclava, jemmy bar, screw drivers, a window breaker, a large number of keys, torches, gloves and other tools and items used to commit burglary. The appellant pleaded guilty to possession of instruments for burglary based on these facts. The appellant was also found to have $1091 cash on him, which was seized by police. He refused to supply the passcode to his cell phone to police, which led to his charge of failing to carry out an obligation under the Search and Surveillance Act.

District Court decision

[10] The District Court Judge noted the appellant’s extensive criminal…

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 Mathias v Police

Details

AGLC: Mathias v Police [2018] NZHC 1910
Case: [2018] NZHC 1910
Decision Date: 30 July 2018

CaseChat Overview and Summary

Mathias appeals his sentence of two years and three months' imprisonment, imposed by the District Court, on charges of burglary, receiving, possession of instruments for burglary, and failing to carry out obligations regarding the Search and Surveillance Act 2012. The appeal is based on the argument that the sentence is manifestly excessive. The appellant's criminal history includes 16 previous convictions for burglary, two for unlawfully being in an enclosed yard, and two for receiving. The legal issues before the court were whether the starting point, uplift, discount for guilty pleas, and order for destruction were appropriate. The court considered the starting point for the burglary charge, the uplift of 15 months, the discount for guilty pleas, and the order for destruction. The court found that the starting point of 18 months was appropriate, the uplift of 15 months was reasonable, the discount for guilty pleas was not excessive, and the order for destruction should be clarified to exclude unspecified items. The court dismissed the appeal, with the exception of clarifying the order for destruction to exclude the words "and other tools and items all instruments used to commit burglaries". The final order is that the sentence imposed on the appellant is not manifestly excessive, and the appeal is dismissed, with the order for destruction amended accordingly.

Orders