Sergent v Police - [2012] NZHC 3475

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-34 [2012] NZHC 3475

DYLON ROBERT SERGENT
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 17 December 2012

Counsel: O S Winter for Appellant
P L Murray for Respondent

Judgment: 17 December 2012

ORAL JUDGMENT OF MACKENZIE J

[1] The appellant pleaded guilty to one charge of aggravated robbery and one charge of burglary. On 14 November 2012 he was sentenced to five years imprisonment for the aggravated robbery and seven months and two weeks for the burglary cumulative on the aggravated robbery sentence. The appellant appeals against the sentence for burglary.

[2] The burglary charge circumstances were that on 23 June 2012 the appellant and his two co-offenders were drinking at the appellant’s address at about 10.00pm, when the appellant drove the group to a farm in Rongotea, where they entered a shed and stole a Honda ATV valued at $7,000, a weed eater and a builder’s level. They
also stole a slug gun from a nearby office building. They then filled plastic

SERGENT V NEW ZEALAND POLICE HC PMN CRI-2012-454-34 [17 December 2012]

containers with 100 litres of petrol from the farm’s fuel tanks and the tap was left on and another 100 litres of fuel drained to the ground. The group drove off, some of them in the car, with one of the group driving the ATV. They were stopped by police in Sanson. The group in the car were released but the slug gun and the ATV were seized. On 25 June, the police established that the farm had been burgled and spoke to the appellant and his two co-offenders who denied any knowledge of the burglary. The other stolen property was not located.

[3] While the appellant was on bail for that charge, he and a co-offender were involved in the aggravated robbery on 6 August. While I need not describe the facts of that in any detail, it involved them going to a car yard seeking to have a test drive of a vehicle and then presenting a rifle to the sales person at the yard intending to take the car and the appellant drove off in the car.

[4] At sentencing Judge Smith sentenced the appellant on both charges. He sentenced cumulatively to reflect the fact that the two offences were separate and distinct. He adopted a starting point of seven years for the aggravated robbery and a starting point of two years for the burglary. That gave a cumulative starting point of nine years which he reduced to eight years in recognition of the totality principle. He then uplifted that starting point by three months to reflect the fact that the aggravated robbery occurred while the appellant was on bail for burglary, and he reduced the sentence by nine months to reflect the appellant’s genuine remorse, his family’s support and his immediate steps to address his offending and drug habit. He also noted that the appellant had no previous convictions. He then reduced…

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 Sergent v Police

Details

AGLC: Sergent v Police [2012] NZHC 3475
Case: [2012] NZHC 3475
Decision Date: 17 December 2012

CaseChat Overview and Summary

Dylon Robert Sergent has appealed against his sentence for burglary. The burglary charge arose from an incident on 23 June 2012, where Sergent and his co-offenders stole various items from a farm in Rongotea, including a Honda ATV, a weed eater, a builder’s level, and a slug gun. They also stole petrol from the farm’s fuel tanks, causing significant damage. The appellant pleaded guilty to both the burglary and an aggravated robbery committed while on bail for the burglary. The sentencing judge, Judge Smith, imposed a sentence of five years for the aggravated robbery and seven months and two weeks for the burglary, which was to run cumulatively on the aggravated robbery sentence. The appellant appealed against the burglary sentence, arguing that the starting point of two years was manifestly excessive. He submitted that a starting point of about one year and six months would have been more appropriate. The respondent argued that the focus should be on the end sentence, which was stern but not manifestly excessive.

The court considered the appropriate approach to the appeal, noting that the sentences had been imposed separately and cumulatively. The court found that a starting point of two years was indeed manifestly excessive and that a starting point of about one year and six months would have been appropriate for the burglary charge. The court allowed the appeal, quashed the burglary sentence, and substituted a sentence of three months, which was to run cumulatively on the sentence for the aggravated robbery. This decision reflects a more appropriate reflection of the burglary charge, taking into account the totality principle and the other factors considered by the sentencing judge.

Orders