Short v Police - [2022] NZHC 2158

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-103

CRI-2022-409-104 [2022] NZHC 2158

BETWEEN
BENJAMIN JAMES SHORT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 August 2022

Appearances:

R A Peters for Appellant

G E R Alloway for Respondent

Judgment:

29 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 August 2022 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

SHORT v NEW ZEALAND POLICE [2022] NZHC 2158 [29 August 2022]

Introduction

[1] Benjamin Short was sentenced to eight months’ imprisonment on a charge of receiving property valued over $1,0001 by Judge Garland.2 That sentence was cumulative on an earlier sentence3 of 12 months imprisonment imposed by Judge Maze on charges of wounding with reckless disregard,4 six charges of dishonestly taking bicycles,5 two charges of receiving6 and charges of breaching bail, community work7 and supervision.8 At that earlier sentencing Mr Short was granted leave to apply for home detention9 and his outstanding community work was cancelled. Judge Garland did not grant Mr Short leave to apply for home detention and refused to cancel the same community work sentence.

[2] Mr Short filed notices of appeal against Judge Garland’s decision. He says the second sentencing was wrong in part and manifestly excessive. This is because the Judge had insufficient regard to the first sentencing decision when sentencing on the additional charge.

Facts

[3] On 18 September 2020 Mr Short was sentenced to nine months’ supervision and 150 hours community work on charges of burglary and altering a document. Over the subsequent months he failed to attend community work and report to his probation officer.

[4] On 8 November 2021, a mountain bike worth $6,000 was stolen from an address in Merivale. On 16 November, Mr Short was stopped by police on the bike. He said he had purchased the bike on Facebook Marketplace for the equivalent of
$1,850 and it never crossed his mind it may have been stolen.

1      Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
2      Police v Short [2022] NZDC 5203.
3      Police v Short [2022] NZDC 305.
4      Crimes Act, s 188(2); maximum penalty seven years’ imprisonment.
5      Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.
6      Crimes Act, ss 246, 247(a) and 247(b); maximum penalty one-seven years’ imprisonment.
7      Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment.
8      Sentencing Act, s 70(a); maximum penalty three months’ imprisonment.
9      Sentencing Act, s 80I.

[5] Between 1 March 2021 and 8 March 2021, Mr Short and two co-offenders unlawfully took six bicycles from around Christchurch. Four of the bikes were taken from the grounds of Christchurch Hospital. They used bolt cutters to remove the bicycle locks. The value of the bikes ranged from $530 to $3,500. Mr Short was later observed by a police detective who had been investigating one of the earlier unlawful takings and subsequent sale. Mr…

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 Short v Police

Details

AGLC: Short v Police [2022] NZHC 2158
Case: [2022] NZHC 2158
Decision Date: 29 August 2022

CaseChat Overview and Summary

Benjamin Short appealed against his sentence of eight months’ imprisonment imposed by Judge Garland. The sentence was cumulative on an earlier sentence of 12 months’ imprisonment imposed by Judge Maze. The court was required to decide if the second sentencing was wrong and manifestly excessive and if the appeal could be heard out of time. The appeal was allowed as the sentence imposed was wrong and manifestly excessive and there was no prejudice in hearing the appeal out of time. The court found that the second sentencing was wrong because the Judge did not have full information when he sentenced Short. The court conducted a fresh sentencing exercise on the receiving charge and determined that a cumulative sentence of three months’ imprisonment was appropriate. The court also revoked the order suspending the sentence of community work as it had already been cancelled. The sentence of eight months’ imprisonment was quashed and a cumulative sentence of three months’ imprisonment was imposed on the November charge of receiving stolen property. The order suspending the sentence of community work was also revoked.

Orders