R v Sherlock - [2008] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND
CA21/2008
[2008] NZCA 555
THE QUEEN
v
KARL JOHN SHERLOCK
Hearing:10 November 2008

Court:William Young P, Ronald Young and Fogarty JJ
Appearances: A J Bailey for Appellant

S B Edwards for Crown

Judgment:16 December 2008 at 12 noon

JUDGMENT OF THE COURT

AThe conviction for driving under the influence of drink or drugs in its aggravated form is set aside. We substitute a conviction for the unaggravated offence and impose a sentence of two months imprisonment.

B        Otherwise the appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
[1]       The appellant appeals against a term of four years and three months imprisonment imposed on him in the District Court by Judge Saunders on 19 December 2007. This followed his entering a plea of guilty on indictment to one count of burglary and pleading guilty to a number of other charges in the summary jurisdiction, including two further charges of burglary, one of receiving and driving offences committed on three separate occasions.
[2]       The sentence comprised three years (reduced from a starting point of four years) for the dishonesty offences. The remaining 15 months is made up of a number of short term cumulative sentences imposed for unconnected offences committed on separate dates between March and October 2007. (Where more than one offence arose from the same incident or at around the same time, the sentences imposed run concurrently with each other.)
[3]       The appellant submits that errors in the approach taken by Judge Saunders resulted in a final sentence which is manifestly excessive. He submits that the starting point of four years imprisonment for the dishonesty offending was too high and that, on a totality basis, the Judge should have taken into account the nine months sentence of imprisonment the appellant had received on 2 October 2006 for three other offences of receiving stolen property. While no issue is taken with the imposition of cumulative sentences for the other offending, the total of the additional 15 months is said to be excessive.
Facts
[4]       On 2 October 2006 the appellant was sentenced to nine months imprisonment for three charges of receiving stolen property. These offences were committed between 1 May and 21 September 2006 and the stolen property found in the appellant’s possession included two cars worth a total of $26,000. The appellant was released from prison in January 2007.
[5]       A factor complicating the sentencing in December 2007 was that it included two offences committed before October 2006. Around 5 April 2006 a workshop in Maunsell Street, Woolston, used by a self-employed engineer was burgled and industrial tools valued at over $12,000 taken. The appellant pleaded guilty to an amended charge of receiving stolen property worth $3,000. Overnight between 8 and 9 September 2006, a garage located on a residential property in Holmwood Road, Merivale was burgled. The appellant pleaded guilty to entering a building with intent to commit a crime.
[6]       On 10 March 2007 the police…

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 R v Sherlock

Details

AGLC: R v Sherlock [2008] NZCA 555
Case: [2008] NZCA 555
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case before the Court of Appeal of New Zealand involved an appeal by Karl John Sherlock against his sentence imposed by Judge Saunders in the District Court. The sentence, which was four years and three months imprisonment, was imposed following a plea of guilty to one count of burglary and other charges including driving under the influence of drugs and possessing an offensive weapon. The appellant argued that the sentence was manifestly excessive due to the starting point for the dishonesty offences being too high and that the cumulative sentences for the other offences were also excessive. The Court of Appeal found that the starting point for the burglary offences was appropriate but did find an error in the cumulative sentencing for the driving offence, reducing the sentence to two months imprisonment. The Court concluded that the appeal should be dismissed in all other respects, reducing the total sentence to four years and one month imprisonment.

The legal issues before the Court of Appeal were whether the starting point for the burglary offences was too high, whether the cumulative sentences for the other offences were excessive and whether the principle of totality was correctly applied. The Court found that the starting point for the burglary offences was appropriate, considering the nature and recency of the offending. Regarding the cumulative sentences, the Court found that the sentence for the driving offence should be reduced due to an error in the imposition of the aggravated form. The Court found that the principle of totality was correctly applied, noting that the Judge had considered the need for accountability, deterrence, denunciation and rehabilitation.

The Court of Appeal held that the starting point for the burglary offences was appropriate given the seriousness and recency of the offending. The Court rejected the argument that the cumulative sentences for the other offences were excessive, except for the driving offence which was reduced to two months imprisonment. The Court found that the Judge had properly considered the principle of totality and the need for accountability, deterrence, denunciation and rehabilitation in sentencing. The Court upheld the appeal in part, reducing the sentence to four years and one month imprisonment.

Orders