Pecotic v Police - [2017] NZHC 2660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-301 [2017] NZHC 2660

BETWEEN
STEPHEN PETER PECOTIC

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 October 2017

Counsel:

J J Corby for Appellant
S J McDaid for Respondent

Judgment:

31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 11:15 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
John Corby (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

PECOTIC v POLICE [2017] NZHC 2660 [31 October 2017]

Introduction

[1] Mr Pecotic appeals the sentence of 25 months’ imprisonment imposed on him by Judge KJ Glubb on 23 August 2017.1 His case is that the sentence is manifestly excessive.

Background

[2] Mr Pecotic pleaded guilty to nine charges, as follows:

· 13 April 2016: driving whilst disqualified

· 8 August 2016: theft (over $1,000) – breaking into a car and stealing a laptop

(valued at $4,000 and unrecovered) and two credit cards.

·8 August 2016: representative charge of using a document for pecuniary advantage and representative charge of attempted use of a document for pecuniary advantage – using one of the credit cards on four occasions to obtain $542.95.

·22 August 2016: theft ($500 - $1,000) – breaking into another car and stealing a handbag (valued at $700 and unrecovered) containing a credit card.

·22 August 2016: representative charge of using a document for pecuniary advantage – using the credit card on six occasions and obtaining $4,271.47.

·4 September 2016: burglary and possession of instruments for burglary – burglary of commercial premises, computer stolen (valued at $2,224.10 and unrecovered).

[3] In addition, there was a charge of breach of release conditions.

[4] When Mr Pecotic was arrested for driving while disqualified on 13 April

2016, he was released on bail. All of the subsequent offences were committed while

1 Police v Pecotic [2017] NZDC 18802.

sentence.

[5] Mr Pecotic, who is 29 years old, had a long list of previous convictions. They included, at Judge Glubb’s count, 16 convictions for fraud, 18 convictions for theft (with a pattern of breaking into cars and stealing contents) and six convictions for burglary. Relevantly, there were nine previous convictions for driving while disqualified and 12 previous convictions for breach of release conditions. His criminal and traffic history occupied 16 pages with frequent sentences of imprisonment.

[6] Judge Glubb sentenced Mr Pecotic to 25 months’ imprisonment, calculated as follows:

· On the burglary charge, 16 months’ imprisonment.

· Uplift for all other charges, 12 months’ imprisonment.

· Uplift for previous convictions, offending while on bail and while subject to

a sentence, five months’ imprisonment.

· Sub-total, 33 months’ imprisonment.

·Less 5% discount for Mr Pecotic’s willingness to participate in a restorative justice process, for the efforts he made in prison to rehabilitate and for his personal circumstances, including his abuse at the hands of the State while a teenager. The Judge calculated the 5% as…

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 Pecotic v Police

Details

AGLC: Pecotic v Police [2017] NZHC 2660
Case: [2017] NZHC 2660
Decision Date: 31 October 2017

CaseChat Overview and Summary

In Pecotic v Police, Stephen Peter Pecotic appealed the sentence of 25 months' imprisonment imposed by Judge KJ Glubb. Mr Pecotic's appeal centred on the contention that the sentence was manifestly excessive. He had pleaded guilty to nine charges, including driving while disqualified, theft, and burglary. The appellant had a substantial criminal history, with multiple convictions for similar offences and repeated breaches of release conditions. Judge Glubb calculated the sentence by allocating 16 months for the burglary, 12 months for the other charges, and five months for the appellant's extensive criminal history, offending while on bail, and while subject to a sentence. The total of 33 months was then reduced by a 5% discount for the appellant's participation in a restorative justice process, his efforts at rehabilitation in prison, and his personal circumstances, including the abuse he suffered in state care. A further 20% discount was granted for the appellant's guilty pleas. The appellant argued that the 5% discount was insufficient to account for the abuse suffered at the hands of the State.

The court examined whether the 5% discount was appropriate given the appellant's history of abuse in state care. The court acknowledged that a background of personal abuse can be considered in sentencing, particularly when rehabilitation is a key purpose. However, a history of abuse alone does not necessarily mitigate the sentence. There must be evidence of a causal relationship between the abuse and the criminal behaviour. The court found that while the 5% discount was not generous, it was within the range available to the sentencing judge. The court also noted that the 20% discount for the appellant's guilty pleas was generous. Ultimately, the court concluded that the sentence of 25 months was within the range available to the sentencing judge and that the appellant's appeal was unsuccessful.

The court dismissed the appeal, upholding the original sentence of 25 months' imprisonment.

Orders