Shadbolt v The Queen - [2020] NZHC 1312

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-000011

[2020] NZHC 1312

BETWEEN
JOSHUA SHADBOLT

Appellant

AND

THE QUEEN

Respondent

Hearing: 10 June 2020

Appearances:

N S Leader for Appellant S Patia for Crown

Judgment:

12 June 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 12 June 2020 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Whangarei Counsel:
N Leader, Whangarei

SHADBOLT v R [2020] NZHC 1312 [12 June 2020]

[1] Mr Shadbolt pleaded guilty in the District Court to two charges of burglary and six charges of being unlawfully in possession of a firearm. On 30 April 2020 Judge D J McDonald sentenced Mr Shadbolt to one year ten months imprisonment.1

[2] Mr Shadbolt appeals against sentence on the basis that the Judge ought to have imposed a sentence of home detention rather than imprisonment.

The offending

[3] All of the charges were laid as a result of an incident that occurred during the afternoon of 14 November 2019. On that date Mr Shadbolt and two associates, one male and one female, travelled to an address in Tikipunga. They parked their vehicle and he and his male associate went to reconnoitre an address nearby. They were filmed approaching the address by CCTV cameras at the address. They discovered that no one was home and then left the address and went to another address in Tikipunga. There Mr Shadbolt and his associates discussed how they would burgle the house they had just visited.

[4] Mr Shadbolt and his male associate then returned to that address and broke into a storage area under the house. They were able to open a firearms locker and steal six firearms from it. They placed the firearms in a blanket and drove back to the address in Tikipunga at which they had planned the burglary. Once there, they discovered the firearms did not have bolts and were accordingly inoperable. They then returned to the address from which they had taken the firearms and Mr Shadbolt attempted to break into another container in which he believed the bolts were being stored. By this time the owner of the property had returned to the address and heard noises coming from the storage unit below his house. He then confronted Mr Shadbolt and a short scuffle ensued before Mr Shadbolt and his associate fled from the address.

[5] Later that afternoon the police stopped a vehicle in which Mr Shadbolt was travelling with the same associates. He ran away but his two associates were arrested by the police. The police found the six firearms in the boot of the vehicle. They comprised a .33 Enfield rifle, a Winchester .22 rifle, a Marlin 10 shot semi-automatic

1 Police v Shadbolt [2020] NZDC 7329.

.22 rifle, a Marlin 12 gauge goose gun, a Sportsman Tube Mag bolt action .22 rifle and an air rifle.

[6]Mr Shadbolt was subsequently arrested approximately two weeks…

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 Shadbolt v The Queen

Details

AGLC: Shadbolt v The Queen [2020] NZHC 1312
Case: [2020] NZHC 1312
Decision Date: 12 June 2020

CaseChat Overview and Summary

Joshua Shadbolt appeals against a sentence of one year and ten months' imprisonment imposed by Judge D J McDonald in the District Court, arguing that a sentence of home detention should have been imposed instead. Shadbolt pleaded guilty to two charges of burglary and six charges of being unlawfully in possession of a firearm. The offences occurred on 14 November 2019 when Shadbolt and two associates attempted to steal firearms from a property in Tikipunga. The offending was premeditated, involved the theft of lethal weapons and placed the occupant of the property in danger. The Judge took a starting point of two and a half years imprisonment, reduced by 25 per cent to reflect Shadbolt’s early guilty pleas and expression of remorse. The Judge declined to apply any further discount in respect of Shadbolt’s upbringing, concluding that there was no nexus between the issues raised in a pre-sentence report and the offending. Shadbolt contends the Judge ought to have imposed a sentence of home detention rather than imprisonment.

The Court notes that the decision whether to impose a sentence of imprisonment or home detention is a matter of discretion, to be exercised in accordance with the sentencing purposes and principles contained in the Sentencing Act 2002. In the present case, the Court considers the Judge was entitled to conclude that the seriousness of the offending warranted a deterrent sentence and that this could not be achieved other than by way of a sentence of imprisonment. The Judge rejected a submission that a sentence of home detention was appropriate on the basis that there was no nexus between Shadbolt’s upbringing and the present offending. The Judge’s view was informed by the fact that Shadbolt had led a law-abiding life for more than 16 years after his grandfather’s death, prior to the present offending. The Judge also considered that Shadbolt’s offending was driven by the consumption of both alcohol and methamphetamine, which cannot be regarded as a mitigating factor. The appeal against sentence is dismissed.

Orders