Regan v Police - [2016] NZHC 161

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000103 [2016] NZHC 161

BETWEEN
HOULYO STEVEN REGAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 February 2016

Appearances:

K Paima for the Appellant
C E Butchard for the Respondent

Judgment:

15 February 2016

JUDGMENT OF NATION J

Introduction

[1] Mr Regan appeals against a sentence of three years’ imprisonment imposed on a lead charge of burglary. Although he has not appealed against the sentence on two other charges, it is important to recognise this sentence was imposed at the same time as he was given a concurrent sentence of six months’ imprisonment on a charge of receiving and a sentence of two months’ imprisonment for breach of release conditions.

[2] The burglary charge arose out of his entering a dwelling through an unlocked back door at some point between 1.30 am and 6.00 am on 13 March 2015. He stole electronic equipment, clothing and food. The victim impact report indicated Mr Regan went into the victim’s bedroom when the man was asleep.

[3] Mr Regan was initially charged with another burglary which occurred between 12.00 am and 4.30 am on 23 March 2015 when someone forced entry to the
garage of a dwelling in New Brighton, Christchurch and stole a road bicycle valued

REGAN v POLICE [2016] NZHC 161 [15 February 2016]

at $4,500 and a mountain bike value at $350. The road bike was recovered but not the mountain bike. Mr Regan was found in possession of the road bicycle soon after. The charge was amended on 25 March 2015 to receiving that bicycle. He pleaded guilty to that amended charge.

[4] Mr Regan was released from Christchurch Men’s Prison on 3 February 2015, having been sentenced to prison for one year and one month for burglary of property under $500 by night. Because he did not have a permanent address, it was a condition of his release that he report every weekday after 16 February 2015 to his probation officer. Mr Regan failed to report at all between 4 March and 19 March
2015. After the probation service made contact with him on 10 March 2015, Mr

Regan failed to report to probation as he said he would.

[5] In May 2015, a Judge gave Mr Regan a sentence indication in the range of 22 months’ imprisonment, giving him credit for a guilty plea and acceptance of responsibility in relation to the offending. On 15 July 2015, Mr Regan appeared before the Judge again. A pre-sentence report was then available with some negative comments about Mr Regan’s attitude and the significant risk of further offending. Mr Regan also wished to withdraw his guilty plea to the receiving charge. In that context, the Judge was not willing to proceed with sentencing on the other two charges in line with his previous indication. The receiving charge was adjourned for a case review hearing on 28 July 2015.

[6] On 28 July 2015, Mr Regan vacated his not guilty plea to…

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

Case: [2016] NZHC 161
Decision Date: 15 February 2016

CaseChat Overview and Summary

Regan appeals against a sentence of three years' imprisonment imposed for a burglary charge, arguing the starting point was too high. The appeal was heard by Nation J, who noted that the burglary charge arose from entering a dwelling through an unlocked back door between 1.30 am and 6.00 am on 13 March 2015, stealing electronic equipment, clothing, and food. The sentencing judge arrived at a starting point of three years' imprisonment, taking into account aggravating features associated with the burglary and Regan's extensive criminal history. The judge added six months for receiving and three months for breach of release conditions, resulting in a starting point of three years and nine months. With a 20% discount for guilty pleas, the ultimate sentence was three years' imprisonment. The appeal hinged on whether the starting point for the burglary was too high and whether the overall sentence was manifestly excessive. Nation J held that the starting point was appropriate and the overall sentence was not manifestly excessive, dismissing the appeal. The judge considered the aggravating features of the burglary, the risk of confrontation with the occupants, and Regan's extensive criminal history, concluding that the sentence was appropriate for the totality of the offending and its impact on the victims. The judge emphasised that the ultimate sentence imposed must be appropriate for the totality of the offending and its impact on the victims. The court found no error in the sentence imposed by the sentencing judge.

Orders