Petersen v Police - [2017] NZHC 2855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000336 [2017] NZHC 2855

BETWEEN
WOLFGANG PETERSEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 November 2017

Counsel:

JW Mackey for Appellant
EAM Mok for Respondent

Judgment:

21 November 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 21 November 2017 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland.
JW Mackey, Auckland.

PETERSEN v POLICE [2017] NZHC 2855 [21 November 2017]

[1] On 15 September 2017 Judge A J Fitzgerald sentenced Mr Wolfgang Petersen to a term of two years and four months’ imprisonment.1 On behalf of Mr Petersen, Mr Mackey contends the sentence is manifestly excessive. Mr Mackey’s primary argument is that the Judge uplifted the starting point unduly for offending unconnected to the most serious offence of aggravated robbery. The respondent contends the sentence is unobjectionable as within range, and indeed benign.

[2] The Judge was confronted with three sets of offending. Between 21 and

23 August 2016, Mr Petersen—who was then 16—and two adult offenders committed aggravated robbery and two burglaries. The trio robbed staff at a service station and burgled two commercial premises. A stolen vehicle was used in relation to these offences, as was a “ram-raid” technique: smashing into premises using a stolen car. On 24 July 2017 Mr Petersen was transferred from the Youth Court to the District Court for sentence.

[3] On 7 February 2017, Mr Petersen and two others burgled a service station. Mr Petersen had just turned 17. This offending originally resulted in a term of intensive supervision and community work, but because it was committed while Mr Petersen was awaiting sentence for the August 2016 offending, the Department of Corrections applied to the District Court to cancel the sentence.

[4] On 24 June 2017, Mr Petersen and many others attacked a young man and woman, and stole the man’s phone after knocking him unconscious. This led to an injuring with intent to injure charge. Mr Petersen unlawfully took a car the next day. Mr Petersen committed all of this offending while subject to the community-based sentence in relation to the February 2017 burglary.

[5] Judge Fitzgerald adopted a starting point of five years’ imprisonment for the August 2016 aggravated robbery. The Judge considered the 2017 injuring would, in isolation, have warranted a starting point of two years’ imprisonment. A similar starting point was considered appropriate for the 2017 burglary, had it stood alone. The Judge adopted a global starting point of six years and two months’ imprisonment
in recognition of the totality principle.

1 R v Petersen [2017] NZDC 22021.

[6] The Judge then heavily discounted the sentence: 30 percent for youth;

10 percent for remorse; a further 10 percent in recognition of Mr Petersen’s difficult background; and 25 percent for guilty pleas. The result: a sentence of two years and four months’ imprisonment.

[7] Mr Mackey takes no issue with the five-year starting point for the…

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: [2017] NZHC 2855
Decision Date: 21 November 2017

CaseChat Overview and Summary

In the case of Petersen v Police, the High Court of New Zealand heard an appeal from Wolfgang Petersen against his sentence of two years and four months' imprisonment. The appellant's counsel argued that the sentence was manifestly excessive, particularly in relation to the uplift for offences committed in 2017. The respondent, the New Zealand Police, argued that the sentence was within range and appropriate.

The legal issues in the case were whether the uplift for the 2017 offending was justified and whether the totality principle had been appropriately applied. The appellant argued that the uplift for the injuring offence should not have been more than six months and that the uplift for the 2017 burglary was invalid as he did not consent to being re-sentenced. The court considered whether the totality principle had been appropriately applied and whether the uplift for the 2017 offending was justified.

The court found that the totality principle had been appropriately applied and that the uplift for the 2017 offending was justified. The court found that the starting point for the injuring offence was appropriate, and the uplift was justified due to the seriousness of the offending and its multiple aggravating features. The court also found that the offender's consent was not required for the re-sentencing of the 2017 burglary, as the statutory criteria for varying or cancelling the sentence were met. The appeal was dismissed.

The court's decision in Petersen v Police highlights the importance of appropriately applying the totality principle in sentencing and the court's discretion in determining the appropriate uplift for multiple offending. The court's decision also emphasises the need for sentences to reflect the gravity of the offending while not being disproportionately severe.

Orders