BThe sentence of three years imprisonment imposed on the burglary count is quashed and a sentence of two years six months imprisonment is substituted. The other concurrent sentences imposed by the District Court remain.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] The appellant was sentenced on 2 December 2008 by Judge Spear to three years imprisonment after pleading guilty to one count of burglary and to summary charges of possession of methamphetamine, BZP, pipes (for drug use), and of a taser stun gun.
[2] The appellant appeals against sentence on the basis it is manifestly excessive. The primary submission is that the starting point adopted was too high given the nature of the offending.
Factual background
[3] The burglary took place on 23 February 2008. The appellant went to commercial premises near which he had previously lived and which he used to clean. As a result, he had keys to gain access to the building. It appears also that the appellant was aware of the security system and so deactivated it. Once inside the building, the appellant took several metres of copper piping from the walls. The piping was loaded into the appellant’s van and he drove off. He was stopped by the police in a routine traffic stop a short distance away and the copper was located. It was valued at about $350. This matter was proceeding to trial with a reserve date of 3 December 2008. However, when the appellant was arraigned on 27 November 2008, he pleaded guilty.
[4] The other charges arose out of a search of the appellant’s home on 28 August 2008. The police found what appeared to be about .25 of a gram of methamphetamine. They also found a handheld stun gun, pipes for smoking cannabis and methamphetamine, four points of the cutting agent MSM and two and a half grams of BZP. It appears that the stun gun was in pieces and would have had to be put together in order to be used.
[5] It was accepted at sentencing that the appellant was a drug addict.
Sentencing remarks
[6] The Judge identified the following aggravating features:
(a)The burglary was premeditated and involved a breach of trust because of the misuse of the keys and the knowledge of the alarm code;
(b)At the time of the burglary, the appellant was under a sentence of community detention and intensive supervision; and
(c)The appellant’s history of offending included 60 previous convictions for dishonesty dating back to 1992 as well as convictions for drug-related offending.
[7] Against this background, Judge Spear emphasised the need to send a “very strong” message of denunciation and personal deterrence.
[8] The…
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.
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Details
AGLC
R v Stevens [2009] NZCA 190
Case
[2009] NZCA 190
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant Michael Murray Stevens appealed against his sentence, arguing it was manifestly excessive. The case involved Stevens pleading guilty to burglary and various drug-related charges. The central issue in the appeal was whether the sentence imposed by the District Court was manifestly excessive. The court assessed the nature of the offending, the appellant's criminal history, and the need for deterrence and denunciation. The Court of Appeal found that while the burglary was premeditated and involved a breach of trust, the value of the stolen goods was relatively low. Given the totality of the circumstances, including the appellant's significant history of dishonesty offences and drug-related charges, the Court of Appeal determined that the starting point for sentencing should have been no higher than 18 months imprisonment. The court further considered the totality principle and the discount for the guilty plea, ultimately concluding that an appropriate sentence would be two years and six months imprisonment. Consequently, the appeal was allowed, and the sentence was reduced from three years to two years and six months imprisonment, with the other concurrent sentences remaining unchanged.