Olsen v The King - [2023] NZHC 2967

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-57

[2023] NZHC 2967

BETWEEN
BENJAMIN DYLAN OLSEN

Appellant

AND

THE KING

Respondent

Hearing: 16 October 2023

Appearances:

S Saunderson-Warner for the Appellant C E R Power for the Respondent

Judgment:

24 October 2023

JUDGMENT OF HARLAND J

Introduction

[1] Benjamin Olsen was sentenced in the District Court1 on 25 May 2023 to 26 months’ imprisonment in relation to charges of failure to carry out computer search obligations (x 2),2 theft (over $1,000),3 burglary (x 2),4 breach of community work,5 unlawful possession of a pistol6 and unlawful possession of ammunition.7

[2] Mr Olsen appeals this sentence in three respects; first he submits there was an excessive uplift for the Arms Act charges, second, a failure to give credit for restorative justice and, lastly, a failure to assess the overall sentence imposed for totality.

1      New Zealand Police v Olsen [2023] NZDC 10547.
2      Search and Surveillance Act 2012, s 178; maximum penalty 3 months’ imprisonment.
3      Crimes Act 1961, ss 219 and 223(b); maximum penalty 7 years’ imprisonment.
4      Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.
5      Sentencing Act 2002, s 71; maximum penalty 3 months’ imprisonment or a $1,000 fine.
6      Arms Act 1983, s 45(1); maximum penalty 4 years’ imprisonment and/or a $5,000 fine.
7      Arms Act, s 54(2); maximum penalty 5 years’ imprisonment.

OLSEN v R [2023] NZHC 2967 [24 October 2023]

The offending

[3] On 16 July 2021, Mr Olsen was sentenced to 250 hours community work in respect of two driving while disqualified (3rd or subsequent) charges. While he completed a substantial amount of this sentence, he failed to report for work on several occasions with most of the sentence outstanding.

[4] The two burglary charges arise from offending that occurred between late on 23 August and early on 24 August 2022. Mr Olsen entered two different residential properties and removed trailers, attaching them to his vehicle and driving away.

[5] Sometime in early September 2022 and while on bail, Mr Olsen drove past an address in Balclutha and saw a trailer there. Using bolt cutters, he cut a chain securing the trailer to a tree before attaching it to his vehicle and driving away.

[6] At about 11 pm on Friday 9 September 2022, Mr Olsen left his motor vehicle parked in a rest area north of Balclutha. The Police attended and observed the registration plate off the stolen trailer in the rear of the vehicle.

[7] On 14 September 2022, a search warrant was executed at the defendant’s then address. Two phones were seized, but Mr Olsen refused to provide the passcodes. The suggestion is that the details of the phones may have contained information relevant to suspected drug dealing. A search warrant was executive on Mr Olsen’s vehicle. Located and seized from inside the vehicle were a pair of bolt cutters. Mr Olsen denied the offending and claimed he had found the registration…

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 Olsen v The King

Details

AGLC: Olsen v The King [2023] NZHC 2967
Case: [2023] NZHC 2967
Decision Date: 24 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Benjamin Olsen appealed against his sentence imposed by the District Court. Olsen was sentenced to 26 months’ imprisonment for various charges, including burglary, theft, and unlawful possession of a firearm and ammunition. Olsen's appeal focused on three issues: the excessive uplift for the Arms Act charges, the failure to give credit for restorative justice, and the failure to assess the overall sentence for totality. The High Court considered each issue in turn. In relation to the uplift for the Arms Act charges, the Court found that the 15-month uplift was stern but not out of range, given the aggravating features of the offending. Regarding the failure to give credit for restorative justice, the Court found that a five per cent discount was justified, but only in relation to the theft charge. Finally, the Court found that while the Judge did not expressly refer to totality, it could be inferred from the starting point and uplifts applied. However, the Court found that a further small deduction could have been applied to reflect totality. Ultimately, the Court found that the end sentence was manifestly excessive by a narrow margin and reduced the sentence of imprisonment to 24 months.

The appeal was allowed in part. The sentence of 26 months’ imprisonment imposed in respect of the burglary charges was quashed and replaced by a sentence of 24 months’ imprisonment. The remainder of the sentence imposed by the Judge remained extant.

Orders