Smitheram v Police - [2024] NZHC 1323

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-62/63/64

[2024] NZHC 1323

BETWEEN
LEVI JOHN SMITHERAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via VMR): 23 May 2024

Appearances:

K Paima for Appellant

W J S Mohammed and M W Fulton for Respondent

Judgment:

24 May 2024

JUDGMENT OF GRAU J

[Sentence appeal]

[1] On 5 March 2024 Mr Smitheram was sentenced by Judge Couch in the Christchurch District Court to two years and seven months’ imprisonment on a raft of charges:1

(a)theft (over $1,000);2

(b)unlawful interference with a motor vehicle;3

(c)theft (over $500);4

1      Police v Smitheram [2024] NZDC 4767.
2      Crimes Act 1961, ss 219 and 223(b) (maximum penalty of seven years’ imprisonment).
3      Crimes Act, s 226(2) (maximum penalty of two years’ imprisonment).
4      Crimes Act, ss 219 and 223(c) (maximum penalty of one year’s imprisonment).

SMITHERAM v NEW ZEALAND POLICE [2024] NZHC 1323 [24 May 2024]

(d)failure to stop for flashing lights (second conviction);5

(e)dangerous driving;6

(f)driving whilst disqualified;7

(g)two charges of conversion of a vehicle;8

(h)burglary;9

(i)nine charges of theft (under $500);10

(j)breaching supervision;11 and

(k)breach of community work;12

[2] Mr Smitheram had previously been sentenced to community work and supervision on 24 May 2023 on the charges of theft (over $1,000) and unlawful interference with a motor vehicle. Following his poor compliance with those sentences, Mr Smitheram came up for re-sentence on those charges, and the charges of breaching supervision and community work were added.13

[3] Mr Smitheram appeals his sentence on one discrete point. He contends that the starting point of 16 months the Judge adopted for the lead charge of burglary was higher than for an equally culpable co-offender, contrary to the principle of parity, and resulting in a manifestly excessive sentence. He takes no issue with any of the other aspects of his sentencing.

5      Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(4), 52A(6) and 114(2) (maximum penalty of
$10,000 fine, court must order disqualification for period of one to two years).
6      Land Transport Act, s 35(1)(b) (maximum penalty of three months’ imprisonment or $4,500 fine, court must order disqualification for six months or more).
7      Land Transport Act, s 52(1)(c) (maximum penalty of $10,000 fine).
8      Crimes Act, s 226(1) (maximum penalty of seven years’ imprisonment).
9      Crimes Act, s 231(1)(a) (maximum penalty of 10 years’ imprisonment).
10     Crimes Act, ss 219 and 223(d) (maximum penalty of three months’ imprisonment).
11     Sentencing Act 2002, s 70(a) (maximum penalty of three months’ imprisonment or $1,000 fine).
12     Sentencing Act, s 71(1)(a) (maximum penalty of three months’ imprisonment or $1,000 fine).
13     Police v Smitheram, above n 1, at [2].

Approach on appeal

[4] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court also retains no…

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.

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Details

Case: [2024] NZHC 1323
Decision Date: 24 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Levi John Smitheram appeals his sentence imposed by Judge Couch in the Christchurch District Court. Smitheram was sentenced to two years and seven months’ imprisonment on various charges, including theft, unlawful interference with a motor vehicle, failure to stop for flashing lights, dangerous driving, driving while disqualified, conversion of a vehicle, burglary, and breaching supervision and community work. Smitheram contests the 16-month starting point for the burglary charge, arguing it is higher than for an equally culpable co-offender, contrary to the principle of parity.

The court must consider whether the sentence imposed by the sentencing Judge contained an error warranting a different sentence. An appeal will be allowed if the sentence is manifestly excessive and not justified by relevant sentencing principles. The court noted that parity in sentencing does not require identical sentences for co-offenders; rather, it requires treating like cases alike and others with due regard for relative differences. The court can intervene if there has been an error in the sentencing process.

The Judge adopted a 16-month starting point for the burglary charge, considering the gravity of the offending substantial due to the degree of premeditation, the value of stolen goods, and the risk of confrontation. The court found that the starting point was within an appropriate range. Even if the starting point had been reduced to 12 months, the end sentence would have differed by only two months, amounting to "tinkering."

The appeal is dismissed as there is no basis for interfering with the sentence.

Orders