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…
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CaseChat Overview and Summary
The court considered the starting point of 12 months for the burglary charge, the uplifts for the possession of an offensive weapon and breach of community work charges, and the discounts for the appellant's guilty plea and personal mitigating factors. The High Court found that the starting point of 12 months for the burglary charge was within range, but the uplifts for the possession of an offensive weapon and breach of community work charges were appropriate and took into account the totality of the offending. The court also found the uplift for the fact that the offending occurred while the appellant was subject to sentence and the uplift for the appellant's lengthy criminal history were not excessive.
However, the High Court found that the Judge failed to give appropriate credit for the appellant's personal mitigating factors. The court found that a 15% discount for personal factors, remorse, and rehabilitative prospects was appropriate, reducing the end sentence from one year and four months’ imprisonment to one year and one month's imprisonment. The appeal was allowed, and the sentence was replaced with a sentence of one year and one months’ imprisonment, with leave to apply for home detention.
In conclusion, the High Court found that the sentence imposed by the District Court was manifestly excessive and not justified by the relevant sentencing principles. The court allowed the appeal and replaced the sentence with a more appropriate one that took into account the appellant's personal mitigating factors.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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