Muirson v The Queen - [2013] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-21 [2013] NZHC 1999

ASTIN MUIRSON Appellant

v

THE QUEEN Respondent

Hearing: 7 August 2013

Counsel: W T Nabney for Appellant
H J Sheridan and J Heerdegen for Respondent

Judgment: 7 August 2013

ORAL JUDGMENT OF KATZ J

Solicitors:
H J Sheridan, G C Hollister-Jones, Crown Solicitor, Tauranga

Counsel:
W T Nabney, Tauranga Chambers, Tauranga

MUIRSON v THE QUEEN [2013] NZHC 1999 [7 August 2013]

Background

[1] The appellant, Mr Muirson, pleaded guilty in the District Court at Tauranga to two charges of burglary and one charge of theft. The burglary charges are punishable by up to ten years’ imprisonment.1 The charge of theft (under $500) is punishable by up to three months imprisonment.2

[2] On 28 June 2013, Judge Geoghegan sentenced Mr Muirson to two years, two months, and one week imprisonment in respect of the two burglary charges. A concurrent sentence of four months’ imprisonment was imposed in respect of the theft charge.

[3] There are three key issues on appeal:

(a) Was the starting point adopted by the Judge for the burglary offending too high?

(b) Was the uplift of nine months applied in respect of Mr Muirson’s

previous offending excessive?

(c) Should a discount have been given for remorse?

Approach on appeal

[4] An appeal against sentence is a general appeal which is by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that if the High Court determines that a sentence imposed was “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence” then the Court may quash or vary the sentence.

[5] Yorston v Police3 sets out the approach to be taken to appeals under s 121(3):4

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[6] If the sentence is within the appropriate range, the appeal Court will not intervene.

Was the starting point for the burglary offending too high?

[7] The first key issue is whether the starting point adopted by the Judge for the burglary offending was outside of the permissible range.

Factual background

[8] The victims in this matter were the occupants of three properties in Mr Muirson’s neighbourhood. The occupants of the three properties were all away on holiday when the offending took place.

[9] Between 26 and 28 April 2013, at night, Mr Muirson entered the first address by forcing open a window. He then proceeded to ransack all the rooms in the house,…

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 Muirson v The Queen

Details

AGLC: Muirson v The Queen [2013] NZHC 1999
Case: [2013] NZHC 1999
Decision Date: 7 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Mr. Astin Muirson, appealed against his sentence imposed by the District Court at Tauranga, following his guilty plea to two charges of burglary and one charge of theft. The District Court Judge sentenced Mr. Muirson to two years, two months, and one week imprisonment for the burglary charges and a concurrent sentence of four months' imprisonment for the theft charge. The primary issues on appeal were whether the starting point for the burglary charges was too high, the appropriateness of the nine-month uplift for previous convictions, and whether a discount for remorse should have been granted.

The Court considered the starting point for the burglary charges, noting the significant damage and emotional harm caused to the victims. Despite the appellant's argument that the properties were unoccupied, the Court held that the starting point of two years was justified due to the serious nature of the offending, the targeting of residential properties, and the significant impact on the victims. The Court also examined the uplift for previous convictions, acknowledging that while the nine-month uplift was on the steep side, it was within the permissible range given Mr. Muirson's extensive criminal history involving various forms of property offending. Lastly, the Court assessed the issue of remorse, concluding that the District Court Judge was best placed to evaluate the genuineness of the appellant's remorse, and there was no apparent error in his approach.

The Court concluded that the overall sentence, while the concurrent sentence for the theft charge exceeded the statutory maximum, was not clearly excessive and warranted the prison term imposed. Therefore, the appeal against the sentence for the burglary charges was dismissed, but the appeal against the sentence for the theft charge was allowed, substituting a sentence of two months' imprisonment, to be served concurrently.

Orders