Porter v Police - [2017] NZHC 384

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000129 [2017] NZHC 384

BETWEEN
SHAUN ROY PORTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 February 2017

Appearances:

L L Heah for the Appellant
E J Henderson & S J Mallett for the Respondent

Judgment:

9 March 2017

JUDGMENT OF NATION J

[1] On 18 February 2016, Mr Porter was found in possession of a pipe for smoking methamphetamine.1 He was charged under s 13 of the Misuse of Drugs Act
1975. He pleaded not guilty on 8 March 2016 and was granted bail.

[2] On 25 March 2016, Mr Porter was found in possession of a pipe used to smoke methamphetamine and possession of a knife in a public place. The knife had a folding blade of approximately 10 centimetres in length. He was charged with possession of a utensil for smoking methamphetamine and being in possession of a knife in a public place without reasonable excuse.2 He appeared in Court on those charges on 31 March 2016 and was remanded on bail.

[3] On 31 March 2016, Mr Porter went into the Warehouse at the Eastgate Mall in breach of a trespass notice prohibiting him from going to those premises. His first
appearance in Court on a charge relating to that was on 16 May 2016.

1 Maximum sentence of one year’s imprisonment.
2 Maximum sentence of three months’ imprisonment or $2,000 fine.

PORTER v POLICE [2017] NZHC 384 [9 March 2017]

[4] On 19 April 2016, a burglary occurred at a home in Sockburn. A handbag and wallet were stolen in the burglary. The burglary occurred at around 10.00 pm. The residents at the address were a couple in their 80’s. At the time it was taken, the wallet contained an EFTPOS card in the complainant’s name. The next day, Mr Porter went to three different service stations where he used the stolen EFTPOS card on five occasions. On three occasions, he was able to purchase items worth $106.75. On two occasions, the transaction was declined. As a result of this offending, Mr
Porter faced one charge of burglary3 and five charges of dishonestly using a

document to obtain property4.

[5] On 11 April 2016, a house in Hawarden was burgled; a wallet was taken. On

13 May 2016, a house was burgled in Rolleston; three firearms were taken. On 19

May 2016, Mr Porter was stopped in a car in Christchurch. In the car, the Police found the wallet from the Hawarden burglary and cash. He was found to be in possession of a starter pistol. Attempts had been made to modify it so it could be a functioning firearm capable of firing a 9 mm ammunition round. Mr Porter was also found to be in possession of a knuckle-duster. Under his seat was a pipe used for smoking methamphetamine along with snap lock bags and some cotton buds. In the backseat of the vehicle was a case containing an imitation Beretta pistol.

[6] As a…

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 Porter v Police

Details

AGLC: Porter v Police [2017] NZHC 384
Case: [2017] NZHC 384
Decision Date: 9 March 2017

CaseChat Overview and Summary

Shaun Roy Porter appeals against his sentence of 30 months' imprisonment imposed by the District Court. The appeal was brought as of right. The High Court must determine if the sentence imposed was manifestly excessive or if there was an error in the process of sentencing. The starting point of 24 months' imprisonment for the burglary was appropriate given the risk of confrontation with vulnerable and elderly residents. The uplifts imposed on other charges were appropriate and necessary to meet the purposes and principles of sentencing. The need to deter Mr Porter from further offending and to protect the public had to be given priority. The effective sentence of 30 months' imprisonment for all this offending was not manifestly excessive or that a different sentence should have been imposed.

The appeal is dismissed.

Orders