Sullivan v R - [2016] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/2015
[2016] NZCA 100

BETWEEN	MICHAEL KIERAN SULLIVAN Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	L L Heah for Appellant M L Wong for Respondent
Judgment:	7 April 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against the sentence of five years and six months’ imprisonment is dismissed.
BThe minimum period of imprisonment of two years and nine months is quashed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

The appellant, Mr Sullivan, appeals a sentence of five years and six months’ imprisonment imposed by Judge Farish in the District Court at Christchurch for a number of property offences, together with two firearms offences and a driving offence.[1] It is submitted the sentence is manifestly excessive in itself, and also incorrect because it failed to have regard to a sentence imposed on Mr Sullivan eight months earlier, for which there should have been a totality adjustment. Finally, the appropriateness of imposing a minimum term of imprisonment (MPI) of 50 per cent is challenged.

Offending

[1]R v Sullivan DC Christchurch CRI‑2013‑009‑8411, 11 December 2014.

In August and September 2013, while on bail for an unrelated charge, Mr Sullivan was involved in numerous burglaries of commercial premises in Christchurch. In respect of some of the burglary charges, CCTV footage showed there to have been more than one offender. The offending followed a similar pattern. A vehicle would be stolen and used to force entry into enclosed yards. Goods would then be taken, often using the stolen vehicle for transport. The vehicle would then be abandoned. At some of the premises damage was done to items left behind, such as car windows being smashed.
The total value of goods taken was around $240,000. Due to circumstances described below, much of the property was recovered but the direct losses still exceed over $50,000. The victim impact statements also make plain that significant indirect costs in dealing with the offending were incurred.
One of the items taken was an Isuzu truck. Mr Sullivan was subsequently located sleeping in it, along with cell phones containing photographs of the stolen goods. Mr Sullivan was also in possession of a knife, which is the subject of a separate charge. Inquiries then led the police to a storage unit that Mr Sullivan had begun renting a year earlier. The storage unit was described by Judge Farish as “an Aladdin’s Cave of burgled and stolen items”.[2]
[2]R v Sullivan, above n 1, at [5].
As well as goods stolen in the burglaries, police located two firearms and ammunition for a different type of gun in the storage unit. The evidence led at trial established Mr Sullivan was conducting some of the burglaries to fill orders he had received for goods. It was also plain he possessed the firearms for the purposes of trade on the black market.
Out of this activity Mr Sullivan faced…

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 Sullivan v R

Details

AGLC: Sullivan v R [2016] NZCA 100
Case: [2016] NZCA 100
Decision Date: 7 April 2016 at 2.30 pm

CaseChat Overview and Summary

The appellant, Mr. Sullivan, was convicted of numerous property offences, firearms offences, and a driving offence. He appealed his sentence of five years and six months' imprisonment, arguing it was manifestly excessive and should have accounted for a previous sentence. The Court of Appeal considered whether the starting point of the sentence was appropriate, whether the earlier sentence should have been considered for totality, and the appropriateness of the minimum period of imprisonment. The Court found that the starting point was justified by the aggravating factors of the case, but that the discount for guilty pleas was excessive. The Court also found that while some consideration of the previous sentence should have been made, the excessive credit for guilty pleas offset any potential adjustment. Finally, the Court found that the minimum period of imprisonment was manifestly excessive when considering the effect of both sentences, and quashed the order. The appeal against the sentence was dismissed, but the minimum period of imprisonment was quashed.

Solicitors: Crown Law Office, Wellington for Respondent

Orders