Otter v Police - [2015] NZHC 2857

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000043 [2015] NZHC 2857

BETWEEN
RICHARD BRUCE OTTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 November 2015

Appearances:

J S Jefferson for Appellant
MJM Mitchell for Respondent

Judgment:

18 November 2015

ORAL JUDGMENT OF HINTON J

Counsel/Solicitors:
Scott Jefferson, Barrister, Napier
Elvidge & Partners, Napier

OTTER v NEW ZEALAND POLICE [2015] NZHC 2857 [18 November 2015]

Summary

[1] The appellant, Mr Otter, was found guilty following a Judge alone trial of two charges of burglary1 and one charge of obstruction. He was sentenced in the District Court to three years’ imprisonment.2 He now appeals that sentence on the ground that it was manifestly excessive.

Factual background

[2] For about ten years, Mr Otter worked for the victim in this matter as a labourer. Mr Otter’s father had also worked for the victim. Mr Otter was familiar with the layout of the victim’s property and the work shed. The property is semi- rural and neighbours are not close by. Mr Otter had spent many hours working in that shed. In November 2013, there was a falling out between Mr Otter and the victim.

[3] During August 2014, Mr Otter planned to burgle the victim’s address. He completed drive-bys of the address and obtained walkie talkies and a scanner. Between 10pm on 2 August and 7am on 3 August, he and unknown associates went to the address, cut a hole in the tin wall at the back of the shed and gained entry. With his knowledge of the shed, Mr Otter went to the fuse box and turned off the power. He located two gun safe keys and removed rifles from the safes. He returned the next night and removed more property.

[4] Approximately ten firearms and a large quantity of ammunition were stolen. Tools and hunting gear were also taken. The total estimated value of the property stolen is between $40,000 and $60,000. The Crown suggested the value could be higher but this seemed to be based on the victim’s insurance schedule which I do not consider it appropriate to rely on in this context. Ms Mitchell effectively agreed with
that.

1 Crimes Act 1961, s 231(1)(a); maximum penalty of 10 years’ imprisonment.
2 Police v Otter [2015] NZDC 18490.

[5] In sentencing Mr Otter, Judge A J Adeane canvassed the background facts and considered the aggravating factors of the offending to be:

(a) The breach of trust involved. Mr Otter had been employed by the owner of the property and they parted on bad terms.

(b)The degree of premeditation. Mr Otter targeted the premises using his inside knowledge of them and went there on two consecutive nights to, as the Judge put it, “maximise the effect of his thieving”. The Judge also drew an inference from the quantity of the stolen property, that Mr Otter had assistance from others; and

(c) The extent of the loss and the emotional harm caused to the victim and his partner. The victim…

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 Otter v Police

Details

AGLC: Otter v Police [2015] NZHC 2857
Case: [2015] NZHC 2857
Decision Date: 18 November 2015

CaseChat Overview and Summary

The case of Otter v Police involved an appeal by Mr Otter against his sentence for burglary and obstruction. The sentencing was conducted in the District Court where Mr Otter was found guilty of two charges of burglary and one charge of obstruction. He was sentenced to three years’ imprisonment. The appeal was based on the argument that the sentence was manifestly excessive. Mr Otter had been employed by the victim for about ten years and had intimate knowledge of the property, which he used to plan and execute the burglaries. He stole approximately ten firearms, a large quantity of ammunition, tools, and hunting gear, with an estimated total value of between $40,000 and $60,000.

The legal issues before the court were whether the starting point and the overall sentence imposed by the District Court Judge were appropriate. The court had to consider the aggravating factors of the crime, such as the breach of trust, premeditation, and the extent of loss and emotional harm caused to the victim. The court also had to consider Mr Otter's personal circumstances and history of dishonesty.

The court found that the three-year starting point was appropriate and consistent with other cases involving similar levels of premeditation and breach of trust. The court also found that there were no appropriate discounts or uplifts in this case and upheld the sentence of three years’ imprisonment. The court dismissed the appeal against the sentence, finding that it was not manifestly excessive and that there were no grounds for home detention.

The final orders of the court were that Mr Otter’s appeal against sentence is dismissed. The sentence of three years’ imprisonment imposed by the District Court was upheld.

Orders