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 RespondentJudgment:
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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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