Stepanicic v Police HC Christchurch CRI 2011-409-000076

[2011] NZHC 1617

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-409-000076

NOEL EVON STEPANICIC

Appellant

v

POLICE

Respondent

Hearing:         31 August 2011

Counsel:         G Hay for Appellant

N M Robson and K Bell for Respondent

Judgment:      31 August 2011

JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  from  a  decision  of  Judge  Erber  in  the  District  Court sentencing the appellant to two years eight months’ imprisonment for a burglary after he had entered a late plea of guilty.

[2]      The appellant had  entered the property of a woman who was inside the property.   He stole a laptop and ran away.   He was found running by the police a short distance from the property in possession of screwdrivers, one of which he used to force entry, but the laptop had disappeared.  He has apologised to the lady for the burglary but essentially apologised to burglary of the property when she was inside. He is clearly a recidivist burglar.   That was the basis on which the sentence was sought.  He has a very long history of burglary, 19 previous convictions for burglary

and at least one for attempted burglary and possession of instruments.

STEPANICIC V POLICE HC CHCH CRI 2011-409-000076 31 August 2011

[3]      He has been sentenced to prison before several times and the Judge was of the view that there was no alternative but to sentence him to a significant period of imprisonment as this seems to be the only possible way in which this man is going to appreciate that it is time for him to stop.

[4]      The Judge considered a sentence a three years and reduced it to two years eight months for a late plea.

[5]      Mr Hay has drawn my attention to the fact that his client had originally pleaded not guilty but entered a plea of guilty after Judge Couch had told him that he thought the sentence would be at least 12 months.   This may have influenced the entering of the plea of guilty but Mr Hay was not able to ask for the plea to be withdrawn on the grounds that the sentence imposed was so out of line with the sentencing indication that it would be unjust to maintain it.

[6]      Mr Hay also had to accept that there is a very strong case against his client.  I can see no realistic way of this case being defended were the plea of guilty to be withdrawn and the appellant be offered another chance to plea.  I rely on the fact that Mr  Hay,  experienced  counsel,  appreciates  that  he  is  not  in  a  position  to  get withdrawal of the plea of guilty.

[7]      Accordingly,  the  appropriate  task  of  the  Court  on  appeal  is  to  consider whether or not the sentence of Judge Erber is manifestly excessive.  By reason of the summary of facts which I have set out I think that although it is a sentence for one burglary, aggravated by the presence of the woman being in the property, it was quite appropriate for the Judge to keep in mind the previous convictions and the fact that this man just keeps committing burglaries and is effectively a professional burglar.

[8]      In these circumstances it cannot be argued that the sentence is manifestly excessive and accordingly the appeal is dismissed.

Solicitors:

G Hay, Christchurch, for Appellant

Raymond Donnelly and Co, Christchurch, for Respondent