Robinson v Police - [2012] NZHC 2967

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-40
CRI-2012-425-41

CRI-2012-425-42 [2012] NZHC 2967

BETWEEN DAMIAN TAMARANGI ROBINSON
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 5 November 2012

Counsel: S N Claver for Appellant
M-J Thomas for Respondent

Judgment: 8 November 2012

JUDGMENT OF MILLER J

[1] The appellant was sentenced to two years, nine months imprisonment on an array of charges, mostly involving offences of dishonesty. On appeal he complains that the sentencing Judge approached the exercise in the wrong way, and that the effective sentence should have been closer to two years.

[2] The charges, offence dates and plea dates were as follows:

ROBINSON v NEW ZEALAND POLICE HC INV CRI-2012-425-40 [8 November 2012]

Charge Offence Date Guilty Plea Date

Attempted Burglary 5 September 2011 10/8/12

Receiving (x2) 18 and 25 January 2012 10/8/12

Breach of Community

Work

3 October 2011 and 7

November 2011

10/8/12

Unlawfully in an enclosed yard

5 September 2011 10/8/12

[3] In addition the appellant was re-sentenced for driving with excess breath alcohol, receiving (on 28 May 2011), and a breach of community work.

[4] I will take the relevant offences in chronological order. The receiving charge of 28 May 2011 arose when the appellant was found in possession of a laptop computer which had only just been stolen in a burglary. His claim that he had lawfully was provisionally accepted at the time, and he succeeded in selling the computer to a person whom he later refused to name.

[5] On 5 September 2011 the appellant attempted to jemmy the window of a Leith Street house. He was unsuccessful. He then went to another property, at Clifton Street, where he was found by the police. He had a large screwdriver and gloves with him.

[6] The final two charges of receiving arose on separate dates in January 2012. The appellant received a playstation with associated games and a digital camera, in separate transactions, and sold these items. He has refused to co-operate with the police with respect to their recovery.

[7] On 15 April 2011 the appellant had been sentenced to 200 hours community work for driving with excess breath alcohol, a third or subsequent offence. A further
100 hours was added on 12 August for the 28 May charge of receiving and another of breach of community work. He completed all but 28 hours. But on 3 October and

7 November 2011 he failed without reasonable excuse to report to the probation officer, and did nothing to explain his absence.

[8] A sentencing indication was given on 2 May 2012, the Judge arriving at an indicative sentence of 29 months imprisonment. That indication was not accepted but the appellant eventually conceded defeat and pleaded guilty. He was sentenced by the same Judge on 28 August.

[9] The Judge outlined the facts and noted the appellant’s abysmal previous record, which involves a large number of convictions for dishonesty offending dating back to 1994. The Judge took a starting point of one…

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: [2012] NZHC 2967
Decision Date: 8 November 2012

CaseChat Overview and Summary

The appellant, Damian Tamarangi Robinson, appealed against his sentence of two years and nine months imprisonment, imposed by the sentencing Judge, for various charges of dishonesty. The respondent, New Zealand Police, defended the sentence. The appellant argued that the Judge erred in the approach to the sentencing exercise, resulting in an excessive sentence. The Court was required to determine if the sentence imposed was manifestly excessive, regardless of the methodology used by the Judge.

The Court found that the appellant's complaint about the discount for the guilty plea was without substance, as it did not affect the outcome. The Court also considered the starting point and uplift for the receiving charge, and found that, while the uplift for previous convictions may have been inappropriate, the Judge was correct to impose a cumulative sentence for receiving, and the effective uplift was only nine months. The Court accepted that a deterrent sentence was necessary, given the appellant's extensive history of dishonesty convictions. The Court also found that the allowance made for totality was reasonable, and the Judge was correct to impose cumulative sentences for offences occurring on different occasions.

The Court dismissed the appeal, upholding the sentence imposed by the sentencing Judge. The effective sentence was not manifestly excessive, and the Judge's approach, while unorthodox, did not result in an unjust outcome.

Orders