Sherlock v Police

[2021] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000182

[2021] NZHC 110

BETWEEN

KARL JOHN SHERLOCK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 February 2021

Appearances:

N R Wham for Appellant

P N M Brown for Respondent

Judgment:

9 February 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 9 February 2021 at 4 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SHERLOCK v NZ POLICE [2021] NZHC 110 [9 February 2021]

Introduction

[1]                 The appellant, Mr Sherlock, pleaded guilty and was sentenced in the District Court to one year and four months’ imprisonment on charges of burglary, possession of an offensive weapon, and breach of community work.1

[2]                 Mr Sherlock appeals the sentence on the grounds that it was manifestly excessive.

Facts

[3]                 On 23 June 2020, the appellant was sentenced to 100 hours’ community work. He completed only 0.5 hours of this sentence, leading to the charge of breach of community work.

[4]                 The charges of burglary and possession of an offensive weapon arise out of events occurring on 14 September 2020. With a co-offender, the appellant travelled to Addington, a commercial suburb of Christchurch, and used a grinder to gain access to a padlocked container on business premises. Once inside, the appellant stole an Xbox game console controller, a glass vase and some scrap metal, which he placed in his vehicle. The appellant then went back inside the container to obtain further items, during which time the police arrived and arrested him. When police searched his vehicle, they found an expandable baton, which the appellant admitted was for protection. These events led to the charges of burglary and possession of an offensive weapon.

District Court decision

[5]                 Judge Couch, the sentencing Judge, in his District Court decision regarded the gravity of the appellant’s offending as moderate. In setting a starting point for the offending, the Judge identified two principal aggravating factors. The first was that the appellant travelled to the property at night and with a grinder which was considered to demonstrate clear premeditation. The second was that the appellant went to considerable effort to break into the container, which was secured by a padlock.

1 New Zealand Police v Sherlock [2020] NZDC 24141.

However, the Judge also noted that the stolen property was immediately recovered and that, by targeting a commercial area at night, there was little chance of confrontation with the occupants of the premises.

[6]                 In this context, Judge Couch adopted a starting point on the burglary charge of 12 months’ imprisonment. Noting the appellant’s expandable baton could not have a practical purpose other than to cause harm to others, his Honour applied an uplift of four months for the offensive weapon charge. Further, an uplift of one month for the charge of breaching community work was applied. This led to a combined total of  17 months’ imprisonment, which the Judge considered an appropriate adjusted sentence…