Smith v Police

[2023] NZHC 3829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-569

[2023] NZHC 3829

BETWEEN

ROMEO SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 December 2023

Appearances:

M J Hamlin for appellant

M V Kilkelly for respondent

Date of judgment:

20 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 20 December 2023 at 3.30pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Marek Hamlin, Barrister, Auckland Meredith Connell, Auckland

SMITH v POLICE [2023] NZHC 3829 [20 December 2023]

[1]    Romeo Smith appeals against Judge J Bergseng’s 20 October 2023 sentencing of him in the District Court at Auckland to three years and two months’ imprisonment.1

Background

[2]    Mr Smith pleaded guilty to 12 charges of various offending, ranging from intentional damage and domestic and commercial burglaries to unlawfully getting into and using vehicles, breach of parole and then dangerous driving and failing to stop, on the last occasion also being in possession of a firearm.2

[3]    All Mr Smith’s present offending occurred while on bail (except for the intentional damage, which occurred while in custody on sentence and is the subject of a 10-month indicated sentence starting point).3

[4]    Mr Smith also has an extensive criminal history, of nearly 60 convictions in the preceding decade: six for robbery or aggravated robbery; six for burglary; and 17 for similar vehicle offending. He has received relatively lengthy sentences accordingly: up to just short of three years’ imprisonment on robbery charges; a few months short of two years on burglaries; and one year on vehicle charges.

Judgment under appeal

[5]    The Judge calculated discrete sentences of imprisonment on each charge, “all up to 70 months”.4 He discounted that starting point by 25 per cent for contributing factors of addiction, poverty and violence in Mr Smith’s background, and a further 25 per cent for Mr Smith’s guilty pleas, to 35 months.5 He then applied a six-month uplift

1      Police v Smith [2023] NZDC 24418.

2      Unlawfully uses a vehicle (Crimes Act 1961, s 226(1): maximum penalty, seven years’ imprisonment); unlawfully gets into a vehicle (x 4) (s 226(2): maximum penalty, two years’ imprisonment); burglary (x 2) (s 231(1)(a): maximum penalty, ten years imprisonment); intentional damage (s 269(2)(a): maximum penalty, seven years’ imprisonment); unlawfully possessing a firearm (Arms Act 1983, s 45(1): maximum penalty, four years’ imprisonment); breaching release conditions (Sentencing Act 2002, s 96(1): maximum penalty, one year’s imprisonment); dangerous driving (Land Transport Act 1998, s 35(1)(b): maximum penalty, three months’ imprisonment); failing to stop for red and blue flashing lights (ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2): maximum penalty, $10,000 fine)

3      Police v Smith DC North Shore CRI-2021-044-3012, 6 April 2022 (Notes of Judge A M Fitzgibbon on Sentencing Indication).

4      Police v Smith, above n 1, at [38]–[42]

5      At [43]–[45].

for Mr Smith’s previous convictions, but misapplied it to a 32-month base for an end sentence of three years and two months’ imprisonment.6

[6]    For Mr Smith, Marek Hamlin contends…