Selfe-Brennan v Police - [2012] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-2 [2012] NZHC 220

BETWEEN QUAID LUCAS SELFE-BRENNAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 20 February 2012

Counsel: I Miller for Appellant
M A O'Donoghue for Respondent

Judgment: 29 February 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

Introduction

[1] In August 2011 the appellant and two friends found themselves on a private driveway with a broken-down car. The occupants of the property were just leaving. The appellant and his friends asked them to help jump start the car. They tried, but failed. The occupants then went on their way. They were not rewarded for their kindness. Once they were out of the way the appellant and his friends forced a window of their house. They took a television, cash, alcohol and other electronic items. And from its garage, they took the occupants‘ other car (valued at $40,000). They drove the stolen car to a river, where they managed to enmire it. One of the appellant‘s friends, a Mr Wedderburn, then set it alight. It was completely destroyed.

[2] The appellant, who is aged 18, was charged with burglary and theft of a motor vehicle as a result of that escapade. A charge of arson was pursued against Mr
Wedderburn, but not the appellant. The appellant was placed on electronically

SELFE-BRENNAN v NEW ZEALAND POLICE HC BLE CRI-2012-406-2 [29 February 2012]

monitored bail (e-bail) pending sentencing. He was also sentenced to a term of community detention for breaching a prior community work sentence.1

[3] But then the appellant committed another burglary. He was permitted to be absent from the approved bail address on Fridays to attend community work. On Friday, 25 November 2011 the appellant contacted the Probation Service and told them he would not be attending community work that day. What excuse was given I do not know. It does not matter in the scheme of things. Having obtained this approved absence, the appellant met up with two friends. They went to the house of one of the group. Behind the house is an enclosed yard. It is used by the district council to store impounded vehicles. The trio climbed into that yard. There they broke into a car. They took a number of items from it: clothing, fuses, CDs, and a stereo. They also took a generator stored in yard. They siphoned the petrol from it and poured that into one of their own vehicles.

District Court decision

[4] The Judge considered he had to determine whether the appropriate sentence was imprisonment or community or home detention. He noted there was no proven history of dishonesty at District Court level. However, the appellant had been dealt with in the Youth Court on similar matters.

[5] The Judge considered prison was the appropriate start point. The Judge concluded that nothing short of prison was appropriate given the brazen nature of the first burglary, and the fact that the appellant had engineered his absence from community work to commit…

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.

Keep reading for free

Create a free CaseChat account to read Selfe-Brennan v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 220
Decision Date: 29 February 2012

CaseChat Overview and Summary

Quaid Lucas Selfe-Brennan appeals against a 21 month sentence of imprisonment imposed by the District Court, which he claims is manifestly excessive. He argues that the Judge erred in imposing cumulative sentences instead of taking the totality of the offending into account. He also submits that there is an unjustifiable and gross disparity in sentences between him and his co-offender, Mr Wedderburn, who received the same sentence. Finally, he submits the Judge was wrong not to impose home detention, which he says would have been more manageable given his stress from his ill father. The Crown submits the sentence was not manifestly excessive, the Judge did not err in applying the totality principle, and there was no disparity in sentences between the appellant and his co-offender. The Crown also submits that the grant of home detention is a discretion and the appellant had demonstrated he was incapable of abiding by a community-based sentence. The High Court found that the starting points for the offending were not excessive. The Court did however depart from the District Judge in his imposition of cumulative sentences. The Court concluded that a total period of imprisonment out of proportion to the gravity of the overall offending had been imposed. The Court found that the appellant's Youth Court history should be taken into account to offset the discount otherwise available for youth. The Court concluded that there was no requirement in law that co-offenders should be treated alike when sentencing. The Court found that the Judge was not plainly wrong in exercising his discretion not to impose home detention. The Court allowed the appeal and substituted a sentence of 15 months imprisonment.

Orders