Newton v Police - [2012] NZHC 2829

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-38 [2012] NZHC 2829

BETWEEN CHAINEY BEAU NEWTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 26 October 2012

Counsel: J W A Rainger for Appellant
R J Collins for Respondent

Judgment: 30 October 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] Mr Chainey Newton is 23 years of age. While out driving with a friend one Monday morning he stopped, entered a house and stole a television and some jewellery.1 The offending occurred while on bail on driving offences committed ten days earlier. He has 20 previous convictions. None is for burglary and few are for dishonesty.

[2] The District Court Judge sentencing him noted that burglaries were plaguing the Hawkes Bay region. This type of offending would be firmly dealt with, therefore. Considering the value of the property and that a private dwelling was involved, a starting point of two years’ imprisonment was adopted. That was then discounted by 25 per cent for the guilty plea entered. The sentence imposed for the burglary was, therefore, 18 months’ imprisonment.2

[3] From that sentence Mr Newton appeals.

1 The television has since been recovered. The remaining property, worth perhaps $2,000 has not.
2 Reparation of $500 was also ordered. He received a further month on the earlier driving charges
(dangerous driving, refusing to stop and to give a blood sample).

NEWTON v NEW ZEALAND POLICE HC NAP CRI 2012-441-38 [30 October 2012]

Submissions

[4] Mr Rainger initially was minded to press three arguments for the appellant. But on reflection his argument came down to a single proposition: that the sentence was manifestly excessive. The starting point was outside the available range in relation to other cases.3 Although entry into a private residence is serious, there were no other aggravating features. While there was the potential for confrontation, there was no actual confrontation or danger to the residents, there was no further damage, the items did not have high monetary or sentimental value and the offending was opportunistic. It was accepted it occurred whilst on bail granted on the driving
charges.

[5] For the police Mr Collins submitted the appeal was meritless. He relied on the recent Court of Appeal decision in Arahanga v R:4

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months imprisonment.

Mr Collins also submitted the 25 per cent guilty plea reduction was generous given the strength of the prosecution case and the one month cumulative sentence on the other driving-related charges was modest.

Sentencing appeal principles

[6] This is a general appeal heard by way of rehearing. The onus is…

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.

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Details

Case: [2012] NZHC 2829
Decision Date: 30 October 2012

CaseChat Overview and Summary

Chainey Newton appeals against his 18-month imprisonment sentence imposed by the District Court for burglary, theft from a private residence, and related driving charges. The court heard arguments regarding the sentence's appropriateness, with the appellant's counsel arguing it was excessive, and the police opposing the appeal's merit. The High Court undertook a rehearing to determine whether the sentence was within the court's jurisdiction, excessive, inadequate, or inappropriate. The court considered various factors, including the seriousness of the offence, personal circumstances, and the District Court's discretion.

The court found that while the District Court did not err in principle, the starting point for the sentence was higher than appropriate. The court noted that the burglary was opportunistic, and there was no risk to the occupants. Given the personal circumstances of the appellant and the lack of aggravating factors, the court found the appropriate starting point to be 15 months. This figure was uplifted by three months to account for the offending occurring while on bail and by the appellant's prior dishonesty convictions, resulting in a total of 18 months. After applying a 25 per cent discount for the early guilty plea, the court determined the appropriate sentence to be 13 months and 14 days.

The appeal was allowed, and a sentence of 13 months and 14 days was substituted for the District Court sentence of 18 months on the burglary charge. The cumulative sentencing on the other charges remained undisturbed.

Orders