Pickering v Police - [2015] NZHC 3112

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-031-434 [2015] NZHC 3112

BETWEEN
ANTON LEE PICKERING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
7 December 2015

(Heard at Wellington via AVL)

Counsel:

J K Mahuta-Coyle for Appellant
D R Davies for Respondent

Judgment:

8 December 2015

JUDGMENT OF SIMON FRANCE J ( Appeal against sentence)

[1] Following a trial, Mr Pickering was convicted of one count of burglary, and one of cultivating cannabis. He had earlier pleaded guilty to a charge of breaching parole conditions. Mr Pickering was sentenced to four and a half years’ imprisonment.1

[2] The appeal identifies various errors in the Judge’s approach which I accept was not orthodox in the sense of identifying a starting point, and adjusting for aggravating and mitigating factors. In such situations it can be appropriate for the appeal court to consider the matter itself,2 which is what I propose to do rather than
overly analysing the sentencing process that the Judge followed.

1 Police v Pickering [2015] NZDC 9573.
2 R v Shipton [2007] 2 NZLR 218 (CA) at [138].

PICKERING v POLICE [2015] NZHC 3112 [8 December 2015]

[3] The burglary for which Mr Pickering was convicted was a particularly serious burglary. It involved entering the garage of a dwelling in which there were two classic motor vehicles. Parts were taken from one, and the other car was stolen, stripped down into parts and disguised. It was insured for $85,000. It was owned by the widow of the man who had restored it to an impeccable condition. There was an understandably high sentimental value attached to the vehicle.

[4] In R v Southon the Court of Appeal emphasised an important aspect of sentencing in this area.3 The well known case of Senior v Police, with its categories of first time, recidivist and spree burglars was not intended to distract from consideration of the actual burglary itself.4 This is such a case. Mr Pickering is a recidivist burglar but I consider it important to first identify an appropriate starting point for this burglary.

[5] In that regard the intrusion is not as serious as in some. However the garage was attached to the home with internal access. The offending occurred at 3.20 am and the elderly occupant was woken by the sound of the car being pushed down the road. The offending was planned, with the vehicles being targeted. The Judge found more than one person to have been involved and there is no basis to differ on that.

[6] It is difficult to identify from other authorities anything other than a broad range. This is because the circumstances vary in terms of approach (whether the focus was on the particular offence or the recidivist character of the offender), the number of burglaries covered by the sentencing, the nature of the burglaries and the
value taken. Some decisions are helpfully reviewed in Harrison v R.5 I consider a

starting point here of three and a half…

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 Pickering v Police

Details

AGLC: Pickering v Police [2015] NZHC 3112
Case: [2015] NZHC 3112
Decision Date: 8 December 2015

CaseChat Overview and Summary

The case of Pickering v Police involved Anton Lee Pickering, who was appealing against his sentence. Following a trial, Pickering was convicted of burglary and cultivating cannabis, in addition to breaching parole conditions. The sentence imposed was four and a half years' imprisonment. The appeal focused on various alleged errors in the sentencing approach taken by the trial judge. The High Court of New Zealand considered whether the sentence was appropriate, taking into account the serious nature of the burglary, Pickering's criminal history, and other factors. The High Court found that the trial judge's approach, while not orthodox, was not in error and dismissed the appeal.

The primary legal issue in this case was whether the trial judge erred in the approach taken to sentencing Pickering, and if the resulting sentence was appropriate given the circumstances. The Court considered the severity of the burglary, Pickering's criminal history, and other factors such as the breach of parole conditions and the cannabis cultivation charge. The Court also examined whether the trial judge appropriately considered mitigating factors, including time spent on electronically monitored bail and a letter of remorse.

The High Court found that while the trial judge's approach was not orthodox, it was not in error. The Court determined that the starting point for sentencing should have been three and a half to four years, taking into account the seriousness of the burglary. However, due to aggravating factors such as Pickering's criminal history and the breach of parole conditions, the appropriate starting point was increased to four and a half to five years. After considering mitigating factors, the Court concluded that the sentence imposed by the trial judge was appropriate, and accordingly dismissed the appeal.

No further orders were made by the Court beyond dismissing the appeal against sentence. The Court's decision upheld the original sentence of four and a half years' imprisonment for Pickering.

Orders