P v Police HC Dunedin CRI 2007-412-48

[2007] NZHC 881

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2007-412-000048

P

Appellant

v

POLICE

Respondents

Hearing:         7 September 2007

Appearances: C S Withnall QC for Appellant

C Power for the Respondents

Judgment:      7 September 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal against the imposition of  conviction and sentence following a guilty plea to a charge of burglary.  Matthew, you have pleaded guilty to entering into a premise through a closed but unlocked rear door and together with an associate uplifting a guitar and two X-box games from the living room.   While leaving the property you and your associate were disturbed by the complainant, the occupant. The guitar was discarded in bushes and one of you talked about being at the wrong address looking for someone called Josh.   All this took place in September 2005

when you were 19 years old.

P V POLICE  HC DUN CRI 2007-412-000048  7 September 2007

[2]      You have been apprehended because you were recently charged with wilful damage, the breaking of a glass in a drunken event, in respect of which you were given diversion but at that time the police took your fingerprints and they can be matched  with  a  fingerprint  found  on  the  guitar.    When  confronted  with  the fingerprint match you pleaded guilty.

[3]      The penalty that the learned District Court Judge imposed on you, a fine of

$400, costs $130 and reparation of $80, indicates that she was of the view that this was not serious offending in the scale of offending for burglary in respect of which the maximum penalty that she could impose was five years and, if burglary is before a trial warranted Judge, can be up to ten years.

[4]      When I first read this file Matthew I was of the view that the appeal should not be allowed because it is important for the accountancy profession to be protected from people who are dishonest, a point that Mr Power made earlier which I said was the best point he could make.

[5]      I have been persuaded by your counsel, Mr Withnall QC, relying on the complainant’s statement, that you were drunk at the time.  In that respect I have an advantage which the learned District Court Judge did not have because she was dealing with a submission from counsel which was to the effect that you probably were drunk.

[6]      You should appreciate that Judges of this Court have to carefully judge the interests of the public knowing whether there are people who are capable of thieving in the professions on the one hand, and the interests of the public in recognising that drunken youths aged about 19 can do things which are quite out of character, and which the community can be confident will not happen again in adult life.  I have decided, from the abundance of evidence of your good character provided to this Court by Mr Withnall, that this is one of those cases.   Under the guidance from Parliament in s 107, to have you branded now at aged 21 as being a burglar would be out of all proportion to what happened that night.  Another problem, as I indicated to Mr Power, if the police want to try to brand you as a burglar that is on their head because they have a discretion how to charge you or whether they charge you at all

for this offence.  But I am satisfied that you do not deserve to have this against your name for the rest of your life, the conviction of burglary.

[7]      For that reason I am going to allow the appeal and discharge you without conviction.  But I asked you to stand to receive this decision in the well of the Court today because I want you to understand just how close you have come to being labelled as a burglar.

Solicitors:

Lucas and Lucas, Dunedin, for Appellant

Wilkinson Adams Lawyers, Dunedin, for Respondent