Pluim v Police - [2012] NZHC 1592

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-019 [2012] NZHC 1592

RICHARD PLUIM
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 3 July 2012

Appearances: T Bolstad for the appellant
A Britton for the respondent

Judgment: 5 July 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Richard Pluim, pleaded guilty to two charges of burglary under s 231(1)(a) of the Crimes Act 1961. He was sentenced by Judge Roberts in the District Court at New Plymouth on 31 May 2012 to 21 months’ imprisonment. Mr Pluim now appeals that sentence as being manifestly excessive.

Facts

[2] The two charges Mr Pluim faced arose out of incidents in July 2002 and April this year.

PLUIM v POLICE HC NWP CRI-2012-443-019 [5 July 2012]

[3] On 30 July 2002 a pharmacy was burgled at Bell Block. The pharmacy was broken into at 4.15am via a rear door. During the burglary a safe was taken containing pethidine and morphine sulphate tablets. Cold and flu preparations were taken from the shelves of the pharmacy. The estimated value of the safe was between $500 and $600. At the time, a swab of an unknown clear fluid (possibly either nasal fluid, tears or saliva) was taken from the surface of a packet of tablets found at the scene. That sample was forwarded to ESR for DNA analysis.

[4] On 22 December 2011 Mr Pluim was arrested in Te Kuiti and charged with theft. He provided a sample of his DNA to the police. That sample was matched with the sample taken from the 2002 crime scene. When spoken to by the police later, Mr Pluim initially denied knowing anything about the burglary. When presented with the DNA evidence he at first implied that his associates must have put it there. He subsequently accepted responsibility.

[5] The April offending this year involved Mr Pluim and an associate breaking into a disused boiler room in the grounds of a derelict local hospital. Although derelict, many of the buildings which formerly comprised the hospital are used by community organisations. The hospital grounds have recently been the target of copper thefts.

[6] Mr Pluim and his associate removed a large copper cylinder and associated piping from within a boarded-up shed. They cut the cylinder up and sold it as scrap metal for $735.

[7] Mr Pluim is 49 years old. He has a multitude of previous convictions over some 30 years of offending. Most relevantly, Mr Pluim’s previous convictions include, by my count, two burglary charges (in August 1989 and July 1980) and some further 28 other dishonesty charges (including theft, unlawfully taking motor vehicles and receiving).

The Judge’s sentencing decision

[8] Mr Pluim pleaded guilty to the July 2002 burglary before Judge Roberts on

8 March 2012. Whilst on bail for that offending, Mr Pluim committed the burglary

at the derelict hospital grounds. Naturally, this was an important factor in the Judge’s sentencing approach who had until then been considering the possibility of a sentence of…

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 Pluim v Police

Details

AGLC: Pluim v Police [2012] NZHC 1592
Case: [2012] NZHC 1592
Decision Date: 5 July 2012

CaseChat Overview and Summary

The appellant, Richard Pluim, appealed against his 21-month imprisonment sentence for two counts of burglary. The Court of Appeal had to determine whether the sentence was manifestly excessive. The appellant argued that the starting point of two years imprisonment was too high and that he should not be classified as a recidivist burglar. The Crown acknowledged that the starting point may have been inappropriate but submitted that it was not excessive given the circumstances. The Court found that the appellant was not properly categorised as a recidivist burglar and that an 18-month starting point would have been appropriate. The Court found that the starting point identified by the Judge was too high and resulted in a manifestly excessive sentence. The Court substituted a sentence of one year and four months’ imprisonment in place of the original sentence.

Orders