Secker-Alison v Police - [2018] NZHC 3277

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000364

[2018] NZHC 3277

BETWEEN
VINCENT WAYNE SECKER-ALISON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2018

Counsel:

D Becker and CG Wright for Appellant DG Johnstone for Respondent

Judgment:

12 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 12 December 2018 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Auckland. Crown Solicitor, Auckland.

SECKER-ALISON v POLICE [2018] NZHC 3277 [12 December 2018]

The appeal

[1] Mr Vincent Secker-Alison punched his mother in the face, bruising her left eye. He and another burgled an Auckland restaurant, albeit the stolen property was recovered. Both offences were committed while Mr Secker-Alison was on bail for charges of assault and unlawfully being in a building. Judge P J Sinclair sentenced Mr Secker-Alison to a term of seven months and two weeks’ imprisonment.1 Mr Secker-Alison appeals. He contends the sentence is manifestly excessive. Mr Secker-Alison invites attention to an uplift of two months’ imprisonment for his criminal record; and parity. The co-defendant received a sentence of 100 hours’ community work in relation to the charge of burglary.

Background

[2] Little additional background is required. The burglary involved the removal of soft-drinks and alcohol from the Soul Bar & Bistro in the early hours of 16 February 2018. The assault came later: 22 March 2018. As observed, Mr Secker-Alison was on bail on charges of assault and unlawfully entering a building. That offending occurred on 22 May 2017 when Mr Secker-Alison and another entered the home of the victim, punched him and stomped on his head. That attack was retaliatory: the victim had been seeing Mr Secker-Alison’s former partner.

[3] Judge Sinclair adopted a starting point of three months’ imprisonment for the male assaults female charge; a five-month starting point for the burglary charge; made these cumulative; and then uplifted the starting point by two months. The Judge mitigated the overall starting point by 25 percent; Mr Secker-Alison pleaded guilty “at an early opportunity”.2 The Judge made the seven and a half-month term cumulative on the one-year prison sentence for the May 2017 offending, which had been dealt with by the time Mr Secker-Alison appeared for sentence before Judge Sinclair.

Uplift

[4] Mr Becker contends the Judge was wrong to uplift the sentence for previous convictions because the sentence was made cumulative on the May offending, and Mr Secker-Alison’s record did not warrant an uplift.

[5] I disagree. Mr Secker-Alison had 33 earlier convictions irrespective of the 2017 offending, including for common assault (2012), two for fighting in a public place (2009 and 2010), assaulting Police (2012), and threatening behaviour (2009). This unaddressed propensity for violence warranted an uplift. That uplift constituted 25 percent of the starting point, an unremarkable level, particularly as the offending was committed on bail for (similar) 2017 offending. No double-punishment occurred because the 2018 offending was discrete from that in 2017, and Mr Secker-Alison’s…

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: [2018] NZHC 3277
Decision Date: 12 December 2018

CaseChat Overview and Summary

The case of Secker-Alison v Police involved an appeal by Vincent Wayne Secker-Alison against his sentence. The appellant had committed an assault on his mother, causing bruising to her left eye, and had also burgled an Auckland restaurant. Both offences occurred while Secker-Alison was on bail for previous charges of assault and unlawfully entering a building. Judge P J Sinclair sentenced the appellant to a term of seven months and two weeks' imprisonment. Secker-Alison argued that the sentence was manifestly excessive, particularly in light of the uplift of two months' imprisonment for his criminal record and the disparity in sentencing compared to his co-defendant.

The legal issues before the court included whether the uplift for Secker-Alison's criminal record was justified and whether the sentence was manifestly excessive. The court examined the appellant's criminal history, which included 33 earlier convictions for offenses such as common assault, fighting in public, assaulting police, and threatening behaviour. The court also considered the disparity in sentencing between Secker-Alison and his co-defendant, who received a sentence of 100 hours' community work for the burglary. The court had to determine whether the disparity rendered Secker-Alison's sentence manifestly excessive.

The court held that the uplift for Secker-Alison's criminal record was justified due to his unaddressed propensity for violence. The court also found that the sentences were not manifestly excessive, noting that the burglary of commercial premises often results in imprisonment. The court relied on previous cases where starting points of five to seven months' imprisonment were considered appropriate for similar offences. The court concluded that the sentence imposed on Secker-Alison was within the appropriate range and dismissed the appeal.

The final orders of the court were that the appeal was dismissed, and the original sentence of seven months and two weeks' imprisonment was upheld.

Orders