Snowball v Police - [2019] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-001

[2019] NZHC 143

BETWEEN
ALLAN SNOWBALL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 February 2019

Counsel:

J D Dallas for appellant

D T E Moore for respondent

Judgment:

13 February 2019

RESERVED JUDGMENT OF DOBSON J

Introduction

[1] On 4 December 2018, the appellant (Mr Snowball) was sentenced by Judge Hastings in the Wellington District Court to two years and six months’ imprisonment in respect of the following charges:1

(a)two charges of burglary;2

(b)two charges of shoplifting items valued over $1,000;3

(c)one charge of shoplifting items valued between $500 and $1,000;4 and

1      Police v Snowball [2018] NZDC 25467.
2      Crimes Act 1961, s 231(1)(a); maximum penalty ten years’ imprisonment.
3      Sections 219 and 223(b); maximum penalty seven years’ imprisonment.
4      Sections 219 and 223(c); maximum penalty one year imprisonment.

SNOWBALL v POLICE [2019] NZHC 143 [13 February 2019]

(d)one charge of common assault.5

[2] Mr Snowball has appealed on the basis that the sentence imposed was manifestly excessive. On his behalf, Mr Dallas argued that while the Judge took into account, as mitigating factors, Mr Snowball’s cognitive impairment and the fact that he was experiencing psychosis over the period of offending, the discount allowed was insufficient.

Factual background

[3] On the afternoon of Sunday, 25 March 2018, Mr Snowball, along with two associates, gained entry into a central city café that was closed during weekends. They located a safe and took it to a nearby carpark. They succeeded in opening the safe and divided its contents, being cash in the amount of $731.10, amongst themselves.

[4] Later that same afternoon, the group entered another café that is also closed during weekends. Having been unsuccessful in breaking into the cash register, they stole a speaker and a cell phone, valued together at approximately $450.

[5] Some weeks later, on 17 April 2018, Mr Snowball entered a jewellery store and asked to view a gold chain necklace. When the shop assistant took the necklace out of the cabinet, Mr Snowball grabbed it and turned to run from the store. The shop assistant ran after him and grabbed his jacket, but Mr Snowball struck the assistant’s hand which caused him to release the jacket. Mr Snowball left the store. The necklace, worth $15,899, has not been recovered. The following day, Mr Snowball was at another jewellery store. He grabbed four rings of a combined value of $752 from a tray on top of the counter and ran from the store.

[6] On 26 April 2018, Mr Snowball was in a furniture store. He seized a lamp valued at $4,975 from a display table, damaging another lamp worth $700 in the process. Having pushed past a staff member who was attempting to stop him, he was caught by members of the public shortly after leaving the store, but the lamp was damaged and no longer saleable.

5 Section 196; maximum penalty one year…

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 Snowball v Police

Details

AGLC: Snowball v Police [2019] NZHC 143
Case: [2019] NZHC 143
Decision Date: 13 February 2019

CaseChat Overview and Summary

The appellant, Allan Snowball, appealed against his sentence in the High Court of New Zealand, Wellington Registry. Snowball was sentenced to two years and six months' imprisonment by Judge Hastings in the Wellington District Court for several offences, including burglary and shoplifting. Snowball's appeal was based on the contention that the sentence imposed was manifestly excessive. He argued that while the Judge considered Snowball's cognitive impairment and psychosis as mitigating factors, the discount allowed was insufficient. The appeal required the High Court to determine whether the sentencing judge made an error in assessing the sentence and whether a different sentence should have been imposed.

The key legal issue was whether the sentencing judge erred in the extent of the discount for Snowball's mental condition. The appeal hinged on whether the five-month discount for mental condition was adequate or if a larger discount was warranted. Snowball's counsel argued that the discount should have been ten months in total, with five months for the burglaries and five months for the remaining offences. The Crown maintained that the five-month discount was appropriate, given the contributory link between Snowball's mental health and the offending. The High Court had to assess the severity of Snowball's mental illness, the causal link between his mental health and the offending, and the appropriateness of the discount granted.

The High Court found that the sentencing judge should have afforded a somewhat larger discount for Snowball's mental condition. The court determined that a 15 per cent discount from the starting point was warranted, resulting in a sentence of a little less than 41 months. After further deductions for remorse and guilty pleas, the appropriate sentence would be a little more than 28 months, or two years and four months' imprisonment. The Court allowed the appeal, quashed the sentences imposed by Judge Hastings, and substituted them with end sentences of two years and four months' imprisonment. The Court was persuaded that the appropriate recognition of mental impairment in sentencing warranted allowing the appeal, despite the relatively modest extent of reduction.

Orders