Melgren v R - [2016] NZHC 2482

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-470-000019 [2016] NZHC 2482

BETWEEN
KURT SAVANA MELGREN

Appellant

AND

THE QUEEN Respondent

Hearing:
18 October 2016

(Heard at Rotorua)

Appearances:

C M Andersen for Appellant
N T C Batts for Respondent

Judgment:

18 October 2016

ORAL JUDGMENT OF PALMER J

Solicitors:
Webby & Associates, Tauranga
C M Andersen, Barrister, Tauranga
Crown Solicitor, Tauranga

MELGREN v THE QUEEN [2016] NZHC 2482 [18 October 2016]

Facts

[1] Mr Kurt Melgren, aged 20, was convicted on 4 May 2016 of aggravated burglary, which has a maximum penalty of 14 years’ imprisonment. He was also convicted of being armed with intent to commit burglary, which has a maximum penalty of five years’ imprisonment; and wilful damage, with a maximum penalty of three months’ imprisonment.

[2] This offending arose out of incidents in January 2015 when Mr Melgren tried to buy cannabis but discovered there was none provided in return for his money. Mr Melgren and an associate went to where the vendor lived. Mr Melgren took with him a hunting knife and covered his face with a bandana. He slashed the tyres of a car, which is the subject of the wilful damage charge. He entered a house and stole items including electronic items and a guitar. The occupants were asleep in the house. It turned out to be the wrong house.

[3] Mr Melgren and his associate then went to the right house, slashed the tyres on another car, used the knife to tap on a bedroom window, which an occupant pulled closed. Mr Melgren and his associate left.

[4] In addition, Mr Melgren was convicted of:

(a) possession of cannabis, which has a maximum penalty of three months’ imprisonment;

(b)possession of equipment for the cultivation of cannabis, which has a maximum penalty of five years imprisonment; and

(c) and possession of a pipe or utensil for the consumption of cannabis, which has a maximum penalty of one year’s imprisonment.

[5] In relation to that, in March 2016 when Police were called to Mr Melgren’s

address he admitted to smoking cannabis and showed the Police the cannabis and a

bong. They found 28.7 grams of cannabis head, 134 grams of cannabis leaf, a bong, pipe and heat lamp.

[6] Mr Melgren has two previous convictions, which did not relate to violence. [7] Mr Melgren pleaded guilty.
District Court decision

[8] On 4 May 2016, Judge Cameron of the District Court sentenced Mr Melgren to two years or 24 months’ imprisonment for the charge of aggravated burglary and three months’ imprisonment for each of the charges of wilful damage and being armed with intent to commit burglary, to be served concurrently with each other but additional to the two years.1 He was sentenced to two months’ imprisonment on each of the three drugs charges, also to be served concurrently with each other but additionally to the two years. So 29 months’ imprisonment all up, as well as reparation.

[9] Judge Cameron arrived at 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.

Continue reading Melgren v R

Details

AGLC: Melgren v R [2016] NZHC 2482
Case: [2016] NZHC 2482
Decision Date: 18 October 2016

CaseChat Overview and Summary

Kurt Melgren appealed against his sentence for multiple charges, including aggravated burglary, wilful damage, and possession of cannabis-related items. The case was heard by Palmer J in the High Court of New Zealand. The appellant's counsel argued that the sentence was manifestly excessive, primarily due to an allegedly incorrect starting point and insufficient consideration of mitigating factors such as remorse and the totality of the offending. The Crown, in response, argued that the starting point was justified and the sentence was within the appropriate range.

The court examined whether there was an error in the sentence imposed. The starting point for aggravated burglary was contested, with the appellant's counsel arguing for a lower starting point of three years instead of three and a half years. The court found that the starting point was within the range available to the sentencing judge, considering the aggravating factors such as the home invasion, disguise, and possession of a weapon. The court also considered the absence of violence as a mitigating factor but concluded that the potential for violence was evident. Comparisons with other cases supported the starting point set by the District Court. The court further found that the uplift for related offending and the discount for mitigating factors were appropriately applied.

Palmer J concluded that the District Court's sentence did not contain any error and was not manifestly excessive. The totality of the offending was considered, and the sentence was consistent with the purposes of sentencing, including denunciation, deterrence, and protection of the community. Given the seriousness of the offences, particularly the aggravated burglary, the court found that a further discount to reduce the sentence below two years would be disproportionate. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders