Selwyn v Police - [2013] NZHC 107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000404 [2013] NZHC 107

SHIRLENE DEBORAH SELWYN
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 February 2013

Counsel: M J Kidd for the Appellant
K Snelgar for the Respondent

Judgment: 5 February 2013

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Dr Michael Kidd, Lawyer, Henderson, Auckland. Crown Solicitor, Auckland

SELWYN V POLICE HC AK CRI-2012-404-000404 [5 February 2013]

Introduction

[1] On 8 November 2012, in the Waitakere District Court, following a plea of guilty, Shirlene Deborah Selwyn (“the appellant”), was convicted and sentenced on one charge of receiving stolen property, namely, an Acer Laptop computer, being reckless as to whether or not it had been stolen. She was sentenced to 225 hours community work. She now appeals against sentence.

Background

Facts

[2] On 23 April 2012 between the hours of 7:30 am and 2:00 pm a dwelling house on Riverhead Road, Kumeu was burgled. During the burglary, a lime green Acer Laptop, valued at $800.00, was taken along with a large number of other items.

[3] Between 23 April and 11 May 2012 the appellant received the laptop from an unknown person. In explanation she said she bought it for $300. However she refused to advise Police from whom she had purchased it.

[4] At sentencing the appellant said that she had received the laptop from a family member or from someone known to the family. She said that she had paid
$300 for it and did not believe it was stolen. She said that whoever she got it from had “gone to the islands”. However she pleaded guilty and did not apply to vacate her plea.

[5] Judge Ryan is recorded as saying she took into account the appellant’s guilty plea, the Police evidence before her and the fact that the appellant had refused to name the person who gave her the laptop. She noted that the appellant had pleaded guilty at a late stage and was “no stranger to the court”.

[6] Although the Judge considered receiving to be a serious offence and despite the appellant’s long history of previous offending, she decided against imprisonment or an electronically-monitored sentence in favour of community work.

[7] Judge Ryan considered that a starting point of 250 hours community work, took into account the appellant’s previous history and the nature of the offending. From that the Judge deducted 25 hours, or 10 per cent, for the appellant’s very late guilty plea. The final sentence was therefore 225 hours community work.

Ground of Appeal

[8] The appellant appeals her sentence on the ground that the sentence of 225 hours of community work is excessive and does not take into account the appellant’s personal involvement in the offence and lack of previous convictions for dishonesty.

Appellant’s Submissions

[9] The appellant submits that the sentence is excessive on the basis that the appellant had paid a market price for a second hand laptop, and so had not been put on notice by an unusually low price. The…

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 Selwyn 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: [2013] NZHC 107
Decision Date: 5 February 2013

CaseChat Overview and Summary

Shirlene Deborah Selwyn appeals her conviction and sentence for receiving stolen property, specifically an Acer Laptop computer, which she purchased for $300. Selwyn was sentenced to 225 hours of community work in the Waitakere District Court. The appeal focuses on whether the sentence is excessive and whether the court failed to consider Selwyn’s personal involvement and lack of prior dishonesty convictions. The High Court will consider whether there was an error in sentencing that warrants a rehearing. The Court examines the appropriate starting point for the sentence, taking into account Selwyn's first dishonesty offence, her remorse, and the fact that she cooperated with police. The Court notes that a sentence of 225 hours community work is higher than those imposed in similar cases. While the Court acknowledges the late guilty plea discount, it finds that the overall sentence does not appropriately reflect the circumstances of this case. Consequently, the Court reduces the sentence to 135 hours of community work.

The Court holds that the sentence of 225 hours community work is excessive and does not adequately account for the appellant’s limited history of prior convictions and the nature of this first-time dishonesty offence. The Court finds that the starting point of 250 hours community work was too high, as it improperly considered the appellant's previous convictions. Instead, a starting point of 150 hours community work is more appropriate given that this was a one-off incident and the appellant’s first offence of this kind. While the Court agrees with the 10% discount for the late guilty plea, it concludes that the overall sentence should be reduced to 135 hours community work. The appeal is therefore allowed, and the sentence is quashed and replaced with a sentence of 135 hours community work.

Orders