Mitchell v Police - [2013] NZHC 2517

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-027 [2013] NZHC 2517

OSJAM PATRICK MITCHELL

v

NEW ZEALAND POLICE

Hearing: 25 September 2013

Counsel:

R T Wilson for Appellant
A Britton for Crown

Judgment:

26 September 2013

JUDGMENT OF WILLIAMS J

Introduction

[1] The appellant appeals against his sentence of nine months imprisonment imposed by Judge Roberts on the basis that it was manifestly excessive, and more severe than the sentence imposed on a co-offender.

[2] He was sentenced on 17 July 2013 and has spent approximately 10 weeks in prison now. By my calculations he has nine weeks until his release on 1 December.

Facts

[3] The appellant was sentenced as a party to burglary, in respect of his somewhat ancillary role in a night time burglary of a residential property. Two of the appellant’s associates invited him to take part in the burglary, which involved forced entry through a window and the removal of alcohol, food and a 42 inch television.
Mr Mitchell said he did not go into the property but helped carry items back to his

MITCHELL v NEW ZEALAND POLICE [2013] NZHC 2517 [26 September 2013]

home address, which was located nearby. Once complete, Mr Mitchell said he returned to the address to ensure there was no evidence linking him to the burglary.

District Court sentencing

[4] Judge Roberts noted the appellant’s previous convictions for dishonesty offending: a burglary conviction in the Youth Court, and in the District Court dishonestly using a document (2007), receiving (2010) and shoplifting (2010). He then noted the pre-sentence report writer’s view that Mr Mitchell fails to take ownership of his offending, minimises his involvement and blames others. Electronically monitored sentences were not recommended because at the time of sentencing there was no consent at proposed current address, and no other address was nominated. The report also noted little family support, a fractured relationship with mother and sister, and transient residence in between their houses, with no nominated address at which to serve a sentence. It transpires that through no fault of the learned Judge, that assessment was wrong. I will come back to this.

[5] In any event, the Judge considered an electronically monitored sentence was inappropriate. He dismissed the suggestion of the defendant relocating to the South Island to live with his father where he could work. The Judge said “I struggle with people who are always able to find work in the shadow of the court gate but display no interest prior to the event”.

[6] The Judge then stated that a starting point of 12 months’ imprisonment was appropriate, for a “mean-spirited burglary” of elderly people, involving premeditation, and the property being returned to his address. He then discounted
25 per cent for guilty plea, and imposed an end sentence of nine months’

imprisonment.

Was the end sentence manifestly excessive?

[7] The appellant submits that the starting point did not reflect his role as a party and not a principle and the fact that…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2013] NZHC 2517
Case: [2013] NZHC 2517
Decision Date: 26 September 2013

CaseChat Overview and Summary

The appellant, Mr Mitchell, appeals against his nine-month imprisonment sentence, imposed by Judge Roberts, arguing that it was manifestly excessive and more severe than the sentence given to a co-offender. He was sentenced for his involvement in a burglary, where he assisted in the burglary by providing a nearby location to store stolen items and later checked the residence to ensure no evidence linked him to the crime. The District Court judge considered Mr Mitchell's prior convictions for dishonesty and noted that an electronically monitored sentence was inappropriate due to the lack of suitable addresses and family support. The judge settled on a starting point of 12 months' imprisonment, discounted by 25% for a guilty plea, resulting in a nine-month sentence.

The legal issues the court was required to decide included whether the starting point of 12 months was manifestly excessive and if there was an unacceptable disparity between Mr Mitchell's sentence and the five-month home detention imposed on the principal offender, Mr Wood. The court considered the degree of planning and sophistication in the offending, the nature of the property entered, the value of the property stolen, and the impact on the occupants. The court also examined the desirability of consistency of sentencing in respect of similar offenders committing similar offences in similar circumstances.

The court held that a starting point of 12 months was appropriate for this case, considering the aggravating factors of the residential nature of the property and the feeling of violation and insecurity experienced by the occupants. The culpability of Mr Mitchell and Mr Wood was considered similar enough to justify the same starting point of 12 months. However, the court found that the learned District Court Judge misapprehended the situation with respect to the support available from Mr Mitchell's family for him and his prospects of rehabilitation. Given the new information, the court was satisfied that it was in order for the appellant to serve the remainder of his term on home detention.

The appeal was allowed, and a sentence of nine weeks' home detention was substituted, subject to certain conditions. The appellant was bailed to the same address pending the assessment of the suitability of the proposed address for a home detention sentence.

Orders