Paul v Police - [2015] NZHC 2583

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-46 [2015] NZHC 2583

BETWEEN
MADELINE HUIA PAUL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2015

Counsel:

E L Reilly for Appellant
M S Jenkins for Respondent

Judgment:

20 October 2015

JUDGMENT OF BREWER J

Solicitors: Lance Lawson (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

PAUL v POLICE [2015] NZHC 2583 [20 October 2015]

Introduction

[1] The appellant, Ms Paul, appeals a sentence of two years one month imprisonment imposed by Judge R Collins in the District Court at Rotorua on
4 August 2015.1 Judge Collins had to sentence Ms Paul on two charges of burglary,2

two charges of theft,3 one charge of being unlawfully in a building4 and two charges of breach of bail conditions.5

[2] Ms Paul appeals the sentence on the ground that it is manifestly excessive in all the circumstances.

Background

Offending

[3] Ms Paul’s offending occurred on a number of occasions between November

2014 and January 2015. It involved burglaries and theft committed at residential properties, three of which belonged to elderly occupants. The facts relating to each offence are as follows.

[4] On the morning of 27 November 2014, Ms Paul knocked on the door of a house in Rotorua and asked the occupier if she could use the toilet. When in the bathroom she opened the window and threw a gold plated man’s watch out of it. She then walked around the house and picked up the occupant’s wallet. She asked to use the bathroom again and threw the wallet out of the bathroom window. Once she left the house she retrieved the watch and wallet from outside the bathroom window. Ms Paul was charged with theft in relation to this incident. Together the watch and
the wallet were valued at $400.

1      Police v Paul [2015] NZDC 15339.
2      Contrary to s 231 of the Crimes Act 1975. The maximum penalty for this offence is 10 years’
imprisonment.
3      One charge of theft was for an amount between $500 and $1000 contrary to s 223(c) of the Crimes Act 1975. The maximum penalty is one year’s imprisonment. The second was for theft under $500. Under s 233(d) the maximum penalty is three months’ imprisonment.
4      Summary Offences Act 1981, s 29(1)(a). The maximum penalty is three months’ imprisonment.
5      Bail Act 2000, s 38. The maximum penalty is one year’s imprisonment. The individual sentences, which were all imposed concurrently, were: two years one month’s imprisonment on each of the burglary charges, four months’ imprisonment for theft ($500-$1,000), one month’s imprisonment for each of the charges of the theft under $500, unlawfully being on a property, and the two breach of bail charges.

[5] On 28 December 2014, Ms Paul drove a van and parked outside a residential property. She knocked on the front door of the house and told the elderly couple who opened the door that she was lost, needed to use their phone, and asked for petrol money.…

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.

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Details

Case: [2015] NZHC 2583
Decision Date: 20 October 2015

CaseChat Overview and Summary

Madeline Huia Paul appeals the sentence of two years and one month imprisonment imposed on her by Judge Collins in the Rotorua District Court. The sentence was for two charges of burglary, two charges of theft, one charge of being unlawfully in a building, and two charges of breach of bail conditions. Ms Paul appeals on the ground that the sentence is manifestly excessive. The appeal was heard by Brewer J in the High Court at Rotorua. Ms Paul's offending occurred over several months and involved burglaries and thefts at residential properties, some of which were occupied by elderly people. The offending included stealing a watch and wallet from a house, taking a cellphone and a petanque set from two different houses, smashing a window to steal a television from a house, and unlawfully entering a property where a deceased man was found. The offending was treated as a series of related events. Ms Paul has a history of mental health issues and substance abuse. She has a number of previous convictions for relatively minor offences and for failing to comply with court orders. The starting point for the sentence was set at 36 months, and was reduced to 30 months to take into account Ms Paul's personal circumstances and her guilty pleas. The starting point was considered too high by the appellant's counsel. The court found that a starting point of two years was appropriate and that the uplifts for the remaining charges were also appropriate. The discounts for personal circumstances and guilty pleas were considered to be generous but appropriate. The appeal was dismissed.

Orders