Smith v Police - [2014] NZHC 2196

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-28 [2014] NZHC 2196

BETWEEN
KIM BRUCE SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 September 2014

Counsel:

WD McKean for Appellant
MA Jarman-Taylor for Respondent

Judgment:

10 September 2014

JUDGMENT OF BREWER J

Solicitors: WRMK Lawyers (Whangarei) for Appellant
Marsden Woods Inskip & Smith (Whangarei) for Respondent

SMITH v POLICE [2014] NZHC 2196 [10 September 2014]

Introduction

[1] Mr Smith appeals against the sentence imposed on him by Judge G Davis in the District Court at Whangarei on 8 July 2014.

[2] On 10 February 2014, Police went to Mr Smith’s property near Whangarei. They found two firearms which Mr Smith was not entitled to possess. Both were loaded and each had a round in the firing chamber. One of the firearms was a Beretta pistol and the other was a .22 Ruger rifle.

[3] Mr Smith denied any knowledge of the firearms but was convicted at trial by Judge Davis on charges of possession of a firearm except for some lawful or sufficient purpose. He was convicted also on companion charges relating to the ammunition.

[4] Each of the charges carries a maximum term of imprisonment of four years. The problem for Mr Smith was that at the time the Police found the Beretta pistol and the Ruger rifle, he was out of prison on parole for similar offending. As a result, he was recalled to prison to continue serving his sentence. It was approximately five months later that he was sentenced by Judge Davis.

[5] At sentencing, Judge Davis was aware that Mr Smith had been recalled to continue serving his previous sentence. Initially, he intended to impose a term of imprisonment of one year to be concurrent with that sentence. But, the Judge did not want to fetter the Parole Board’s ability to grant Mr Smith further parole by imposing a sentence which would trigger automatically standard release conditions.

[6] The Judge did not mention specifically credit for the time spent serving the sentence on recall. I infer from the Judge’s reference to a Parole Board hearing scheduled for 1 August 2014 that he assumed that credit would be given. Therefore, he imposed a concurrent sentence of 11 months’ imprisonment and remitted outstanding community work requirements of approximately 164 hours.

[7] Mr Smith’s complaint is that the Judge should have deducted from the

sentence of 11 months’ imprisonment the five months he had spent in prison as a

result of being recalled to continue his sentence. Normally, time spent in prison on remand prior to sentence is automatically credited against the sentence imposed. But that is not the case when a person is recalled to continue serving an existing sentence.

Issue

[8] I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed. Therefore, to disturb the Judge’s sentence, I must not only find that there has been an error…

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 Smith v Police

Details

AGLC: Smith v Police [2014] NZHC 2196
Case: [2014] NZHC 2196
Decision Date: 10 September 2014

CaseChat Overview and Summary

The appeal by Kim Bruce Smith against his sentence in the District Court at Whangarei was heard on 10 September 2014. The appeal was against the sentence imposed on Smith by Judge G Davis, who found Smith guilty of possessing firearms and ammunition without lawful or sufficient purpose. Smith's complaint was that Judge Davis should have deducted from his sentence of 11 months’ imprisonment the five months he had spent in prison due to being recalled to continue serving his previous sentence. The issue before the court was whether the sentence of 11 months’ imprisonment, concurrent with the sentence Smith was already serving, was manifestly excessive in all the circumstances of Smith’s case.

The court considered that Judge Davis did not seem to have considered the five months Smith spent in custody because of being recalled to prison, a factor which needed to be taken into account. The court also considered the appropriate starting point for the sentence, which was around 18 months’ imprisonment, and the appropriate uplift based on Smith's previous record and the fact that the offending occurred while he was on parole. The court concluded that a final sentence of 18 months’ imprisonment could, at a stretch, have been reached. However, the court found that the sentence was manifestly inadequate because the Judge likely made an error in setting his starting point and he made an error in making the sentence concurrent.

Ultimately, the court dismissed the appeal and left the sentence undisturbed. The court took into account that the respondent had not appealed the sentence and had not characterised it as being manifestly inadequate. Instead, the respondent's view was that it was very, very lenient. The court also considered the role of the District Court Judge in deciding Smith’s sentence based on his understanding of the culpability of the offending obtained by being the judge of the facts in the trial.

Orders