Oldham v Police - [2017] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-238

CRI-2017-404-239 [2017] NZHC 2602

BETWEEN
TAHJ OLDHAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 October 2017

Appearances:

S Brickell for the Appellant
K E Tuialii for the Respondent

Judgment:

25 October 2017

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 25 October 2017 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Counsel/Solicitors:
Public Defence Service, Auckland
Kayes Fletcher Walker, Manukau

TAHJ OLDHAM v NEW ZEALAND POLICE [2017] NZHC 2602 [25 October 2017]

Introduction

[1] On 7 April 2017, Mr Oldham was sentenced by Judge Jonathan Moses in the Auckland District Court to 4 years and 4 months’ imprisonment after pleading guilty to 10 charges of receiving stolen property, assault with intent to injure, unlawful entry into a motor vehicle and breach of release conditions. The sentences imposed on those charges were:

(a) Receiving (six counts, lead charge): 3 years, 6 months’ imprisonment;

(b) Receiving: 8 months’ imprisonment (concurrent);

(c) Assault with intent to injure: 8 months’ imprisonment (cumulative);

(d) Unlawfully getting into motor vehicle: 8 months’ imprisonment

(concurrent);

(e) Breach of release conditions: conviction and discharge.

[2] Having decided those sentences, the District Court Judge then imposed a

minimum period of imprisonment of two years and six months’ imprisonment.

Facts

[3] I adopt the summary of the offending outlined in the Judge’s sentencing

notes:1

[1] Mr Oldham, you are for sentence on a large number of charges before me today. You have been charged and have pleaded guilty to receiving a number of expensive motor vehicles between 10 and 13 October last year [2016].

[2] A commercial premises was broken into in Penrose which stored recently imported motor vehicles, it was broken into at some stage between 8 and 10 October by cutting a large hole in a chain-linked fence. Persons entered into the office area and obtained keys to between 30 and 40 vehicles and they were taken. You received a number of vehicles from persons unknown, they included a Porsche motor vehicle valued at $50,000, a Land Rover valued at $50,000, two Mercedes Benz motor vehicles each valued at

1 Police v Oldham [2017] NZDC 7639.

$60,000, an Audi valued at $40,000, there is also a Maserati motor vehicle valued at $180,000. That meant you were in receipt of some $440,000 worth of stolen motor vehicles.

[3] Subsequently on 20 November last year you were at home with your then partner, an argument erupted between the two of you and you then grabbed her, forced her on the floor of the bedroom, you punched her a number of times while she lay on the floor and used your hands to cover her mouth to stop her from screaming. You then walked out of the house taking her car keys, she followed you and was kicked in the right shin area, she went to a neighbour’s house to…

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 Oldham v Police

Details

AGLC: Oldham v Police [2017] NZHC 2602
Case: [2017] NZHC 2602
Decision Date: 25 October 2017

CaseChat Overview and Summary

Tahj Oldham appeals against his sentence, contending that the minimum period of imprisonment imposed was unlawful. The District Court Judge had sentenced him to 4 years and 4 months’ imprisonment, with a minimum period of imprisonment of 2 years and 6 months. Oldham argued that the minimum period imposed was unlawful because it exceeded the maximum permitted under s 86(4) of the Sentencing Act 2002, and that the Judge had erred in imposing a minimum period of imprisonment. The High Court was required to determine whether the length of the minimum period of imprisonment was lawful and, if not, whether it was appropriate to impose a minimum period of imprisonment. The Court found that the minimum period of imprisonment imposed exceeded the maximum permitted under s 86(4) and quashed the minimum period imposed. The Court then considered whether it was appropriate to impose a minimum period of imprisonment, having regard to the considerations of accountability, denunciation and deterrence in s 86(2) of the Sentencing Act 2002. The Court found that, while a minimum period of imprisonment was appropriate, it was not appropriate to set a minimum period of imprisonment at or close to the statutory maximum of two-thirds of the sentence on the lead charge. The Court substituted a minimum period of imprisonment of one year and eight months’ imprisonment. The rest of the sentence stands.
Final orders[30] (a) The appeal is allowed; and(b) The minimum period of imprisonment directed by the District Court is quashed and a minimum period of imprisonment of one year and eight months’ imprisonment is substituted. The rest of the sentence stands.

Orders