Rhind v Police - [2019] NZHC 1065

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-26

[2019] NZHC 1065

BETWEEN
SIJAYE EDWARD TE PUPUHI RHIND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2019

Appearances:

R B Quin for Appellant

A R A Pell for Respondent

Judgment:

15 May 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 15 May 2019 at 11:00 am

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Hamilton

RHIND v POLICE [2019] NZHC 1065 [15 May 2019]

Introduction

[1] Mr Rhind (the appellant) appeals his sentence of 12 months’ imprisonment on the ground that it is manifestly excessive.

[2] Having entered a plea of guilty to a charge of attempted theft of a flat screen television set, he was sentenced on 20 March 2019 in the District Court at Huntly by Judge Connell.1 He had initially been charged with an offence of burglary2 in relation to the same offending, however when that charge was amended to attempted theft, he entered a plea of guilty to the amended charge, and also to a charge of intentional damage of two windows and the wall at the premises where the flat screen television was located.3

[3] In addition, he entered pleas of guilty and was sentenced at the same time on charges of:

(a)Breaching post detention conditions by associating with his victim without the written consent of his Probation officer.4

(b)Breaching post detention conditions by failing to report as directed by his Probation officer.5

(c)Failing to appear in court contrary to the terms of bail. 6

[4] On the breach of sentence conditions charges, the Judge imposed a sentence of three months’ imprisonment to be served concurrently with the sentence imposed on the attempted theft and wilful damage charges.

1      Crimes Act 1961, ss 219, 231(b) and 311.
2      Crimes Act 1961, s 231.
3      Crimes Act 1961, s 269(2)(a).
4      Sentencing Act 2002, s 80U.
5      Sentencing Act 2002, s 80U.
6      Bail Act 2000, s 38(a).

Background

[5] Sometime between 28 October and 30 October 2018, the appellant went to the victim’s property. He broke two windows and gained entry. Once inside he attempted to remove a flat-screen television from the wall, which was unsuccessful and caused a hole in the wall. Some of his blood was spilt during this attempt and was left on the wall. While inside the premises he urinated on the floor of the bathroom, and took food from the fridge. When interviewed by police, he said that the granddaughter of the occupant of the address had given him permission to enter the property and take the television. The television was valued at $1450.

[6] Although the appellant was initially charged by the police with burglary, they later accepted that he had been given permission by a relative of the occupant, to stay at the property, and consequently the charge was amended to attempted theft.

The Judge’s sentencing decision

[7] Judge Connell adopted a starting point of 10…

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 Rhind v Police

Details

AGLC: Rhind v Police [2019] NZHC 1065
Case: [2019] NZHC 1065
Decision Date: 15 May 2019

CaseChat Overview and Summary

Mr Rhind appeals his sentence of 12 months’ imprisonment for attempted theft and wilful damage, arguing that the sentence is manifestly excessive. The District Court Judge, Judge Connell, imposed a starting point of 10 months’ imprisonment for the attempted theft charge and added an uplift of three months’ imprisonment for the appellant’s previous convictions for burglary, and a further uplift of three months for the charges of breaching sentence conditions. The appeal was heard by Davison J in the High Court at Hamilton. The appellant argues that the District Court Judge adopted a starting point that was too high by treating the sentencing as if it related to an offence of burglary, and that the end sentence of 12 months’ imprisonment is manifestly excessive. The respondent argues that the starting point adopted by the Judge was at the lower end of the available range and that the sentence was not manifestly excessive.

The Court found that the Judge’s adoption of a starting point of 10 months’ imprisonment for the attempted theft offence was well within range and the end sentence of 12 months’ imprisonment was not manifestly excessive. The Court found that the circumstances of the appellant’s offending, which involved breaking windows to enter a dwelling house and then also causing further damage to the interior wall of the house when attempting to remove the television set, place the appellant’s offending on a more serious level than the offending in Henriksen. The Court found that the Judge was clear that he was imposing a sentence for the offence of attempted theft and that the Judge’s error in referring to the offending as if it was burglary offending did not indicate that he proceeded with the sentencing on the basis that the appellant was being sentenced for the offence of burglary. The appeal was dismissed.

Orders