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Proctor v Police

Proctor v Police

Case [2018] NZHC 763 20 April 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-045

[2018] NZHC 763

BETWEEN
TUI MARLEY PROCTOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 April 2018

Appearances:

K Stretton & G H Vear for Appellant A L McConachy for Respondent

Judgment:

20 April 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 20 April 2018 at 4.15pm. pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

PROCTOR v POLICE [2018] NZHC 763 [20 April 2018]

Introduction

[1] Mr Tui Proctor pleaded guilty to one charge of burglary and one charge of receiving property valued over $1,000. He was sentenced to two years and 11 months’ imprisonment and ordered to pay $300 reparation. Mr Proctor now appeals his sentence, arguing the sentence imposed was manifestly excessive and that an end sentence in the range of two years and two months would have been more appropriate.

The offending.

[2] The charge of receiving stolen property arose from events on 1 April 2017, when jewellery valued at approximately $5,000 was stolen from the victim’s home. That same afternoon, Mr Proctor sold the jewellery to a second-hand dealer for $1,160. He claimed to have purchased the jewellery from an associate for several hundred dollars, but pleaded guilty on the basis that he was reckless as to whether it had been stolen. The jewellery was recovered.

[3] The burglary occurred on 26 April 2017, and involved Mr Proctor entering the residence of a 67-year-old woman. At some time during the day, while the victim was outside in the garden of her property, Mr Proctor entered the house and took a laptop computer, iPad and a handbag containing the victim’s personal belongings. A sample of his blood was later found in the home. On 12 May, Mr Proctor was located and the victim’s driver’s licence was found in his possession. His initial explanation was that it had been found in a park. Mr Proctor later pleaded guilty to this offending.

[4] The victim impact statements record that both victims are now fearful in their own homes, and have had to pay an insurance excess of $200 and $300 respectively.

Mr Proctor’s personal circumstances

[5] Mr Proctor is 31 years old. He has an extensive criminal history which includes convictions for driving-related offences, drug-related offences, breaches of court-imposed conditions, and numerous dishonesty-related offences. Relevantly, he has seven prior convictions for receiving stolen property and 13 for burglary.

[6] The pre-sentence report describes Mr Proctor as a regular user of methamphetamine. Mr Proctor informed the report writer that his offending is motivated by a need to fund his drug addiction. He is assessed as presenting a high risk of reoffending.

District Court sentencing decision

[7] Judge Ronayne sentenced Mr Proctor on 23 January 2018.1 A starting point of 20 months’ imprisonment was adopted for the burglary charge. That starting point reflected the fact that the burglary was 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 Proctor v Police

Details

AGLC: Proctor v Police [2018] NZHC 763
Case: [2018] NZHC 763
Decision Date: 20 April 2018

CaseChat Overview and Summary

Mr Proctor appeals his sentence for burglary and receiving property valued over $1,000. He argues the sentence imposed was manifestly excessive and that a sentence in the range of two years and two months would have been more appropriate. The appeal raises four issues: whether the starting points for each offence were too high; whether cumulative sentences should have been imposed instead of concurrent sentences; whether an adjustment for totality was required; and whether a discount for remorse and rehabilitative efforts should have been applied.

The starting points for each offence were within the available range, though at the upper level. The burglary was of a dwelling house by day, which is an aggravating feature, and the value of the stolen property was $5,000. The receiving charge involved Mr Proctor selling the stolen property the same day as the burglary, suggesting a close connection between the burglar and the receiver. The Judge was entitled to conclude that no discount for remorse was available, as Mr Proctor's letter of apology did not demonstrate genuine remorse and the pre-sentence report concluded that he lacked insight into his offending. However, the Judge erred in his view that there was no justification to reduce the sentence he had arrived at by adopting the cumulative approach. The cumulative approach yielded a sentence that was wholly out of proportion to the gravity of the overall offending. Applying the totality principle, the appropriate sentence is two years and five months’ imprisonment.

Accordingly, the appeal is allowed and the sentence is reduced to two years and five months’ imprisonment. The Judge’s orders relating to the payment of reparation and the appellant’s outstanding fines are to stand.

Orders