Swinburne v R - [2010] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND
CA543/2010
[2010] NZCA 568
BETWEENJAMIE MICHAEL SWINBURNE

Appellant

ANDTHE QUEEN

Respondent

Hearing:25 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:K L McHugh for Appellant

M E Ball for Respondent

Judgment:25 November 2010

ORAL JUDGMENT OF THE COURT

A Appeal against sentence allowed.
BThe cumulative sentence of three months imprisonment on the charge of breach of home detention is quashed. Imposed instead is a sentence of three months imprisonment concurrent on the other sentences of imprisonment.
CThe overall sentence of imprisonment is thereby reduced to three years, two months imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        Mr Swinburne was sentenced to three years, five months imprisonment for four burglaries, a breach of home detention, possession of cannabis and resentencing on attempting to pervert the course of justice and assault.[1]
[1]      Police v Swinburne DC Invercargill CRI-2010-025-1330, 29 July 2010.
[2]        Ms McHugh for the appellant says that the final sentence was manifestly excessive because Judge Phillips:
(a)         set the starting point too high;
(b)         incorrectly applied the totality principle; and
(c)erroneously failed to give credit for the appellant’s youth and his prospects.

[3]        No point of principle arises. We are therefore in a position to give an oral judgment today.
Offending
[4]        During the day of 4 February 2010 the appellant broke into a house in Invercargill by smashing a glass panel rear door. He searched the dwelling and took $200 cash and a digital camera (first burglary charge).
[5]        A week later on 11 February the appellant broke into another house in Invercargill, also by smashing a glass panel in the rear door. Once again $200 was taken together with a digital camera, PlayStation and PlayStation games (second burglary charge).
[6]        Four days later on 15 February the appellant again broke into a house by smashing a glass panel in a rear sliding door. The dwelling was searched and a laptop computer, a black computer bag, a Nintendo, plus games and jewellery items were taken (third burglary charge).
[7]        A few days later, on 18 February, the appellant again broke into a house by breaking a glass panel in a rear sliding door. The appellant searched the property and took a 42 inch television, a digital camera, a laptop and $2,200 cash in foreign currency (fourth burglary charge).
[8]        All of the burglaries occurred during the day. None of the property has been recovered. The total value of the property taken or damaged was $13,531.
[9]        At the time of these burglaries the appellant had been released from prison on electronically monitored home detention. The appellant also breached his home detention sentence.
[10]       In June 2009 the appellant was sentenced to 12 months imprisonment for a large number of burglaries, an assault and resisting arrest. Originally the appellant had been sentenced to home detention. However he breached home detention and was in danger of being sentenced to imprisonment. In an attempt to avoid imprisonment he…

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 Swinburne v R

Details

AGLC: Swinburne v R [2010] NZCA 568
Case: [2010] NZCA 568
Decision Date: 25 November 2010

CaseChat Overview and Summary

In the case of Swinburne v R, the appellant, Jamie Michael Swinburne, was sentenced to three years and five months imprisonment for multiple offenses, including four burglaries, a breach of home detention, possession of cannabis, and resentencing on charges of attempting to pervert the course of justice and assault. Swinburne appealed against his sentence, arguing that it was manifestly excessive due to various perceived errors in the sentencing process by Judge Phillips. The key issues before the court were whether the starting point for sentencing was set too high, whether the totality principle was correctly applied, and whether the judge appropriately considered Swinburne's youth and prospects in the sentencing decision. The court found that while the starting point for the burglary offenses was justified, the cumulative sentence for the breach of home detention should have been concurrent rather than cumulative. The court allowed the appeal to the extent that the cumulative sentence for the breach of home detention was quashed and replaced with a concurrent three-month sentence. Consequently, the overall sentence was reduced to three years and two months imprisonment. The appeal was dismissed in all other respects.

Orders