[1] The appellant, Mr Thomas, pleaded guilty to a number of charges arising out of three distinct series of events. On the evening of 18 April 2016 he burgled a residential property and stole $950 worth of electronic goods. On 23 May 2016 he used a stolen credit card to acquire $400 worth of goods from various service stations. On 27 May 2016 he drove dangerously while attempting to evade police. He was subsequently charged with, and pleaded guilty to, one charge of burglary, four charges of dishonestly using a document, and one charge of dangerous driving.

[2] He was sentenced by Judge Couch in a decision dated 14 September 2016 to a term of two years 11 months’ imprisonment.1 He appeals his sentence on the basis
that it is manifestly excessive.

1 Police v Thomas [2016] NZDC 18009. The appellant was also disqualified from driving for eight months.

The District Court decision

[3] In the District Court the Judge took the offence of burglary as the lead charge. He expressed the view that the burglary was a “well-organised burglary for personal gain”. He took a starting point of two years’ imprisonment which was then uplifted by three months to reflect the fact that the burglary involved Mr Thomas’ “unlawful presence in a dwelling house”. An uplift of nine months was then added for the appellant’s criminal history and a further nine months for the charges of dishonestly using a document. This led to an end sentence of three years nine months’ imprisonment. The Judge identified the only mitigating factor as the appellant’s guilty pleas and he then reduced the sentence by 10 months to reach an end sentence of two years 11 months’ imprisonment. In respect of the dangerous driving charge, the appellant was sentenced to one month imprisonment to be served concurrently and was disqualified from holding or obtaining a drivers licence for eight months.

Grounds of appeal

[4] Mr Thomas’ primary ground for appeal is that the effective starting point adopted by the Judge for the charge of burglary was too high. He also says that the Judge erred by failing to apply a discount for the expressed remorse.

Principles on appeal

[5] The appeal is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court must allow an appeal against sentence if it is satisfied there has been an error in the imposition of that sentence, including where the sentence is manifestly excessive,
and that in the event, a different sentence should be imposed.2

[6] However, if the sentence under appeal may be properly justified having regard to the relevant sentencing…

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 Thomas v Police

Details

AGLC: Thomas v Police [2016] NZHC 2739
Case: [2016] NZHC 2739
Decision Date: 15 November 2016

CaseChat Overview and Summary

James Barry Thomas, the appellant, appealed against his sentence of two years 11 months’ imprisonment imposed by the District Court. The District Court found the appellant guilty of one charge of burglary, four charges of dishonestly using a document, and one charge of dangerous driving. The court held that the burglary was a well-organised burglary for personal gain, resulting in an effective starting point of two years’ imprisonment. The starting point was then uplifted by three months for the unlawful presence in a dwelling house, nine months for the appellant’s criminal history, and nine months for the charges of dishonestly using a document. The Judge identified the only mitigating factor as the appellant’s guilty pleas and reduced the sentence by 10 months to reach an end sentence of two years 11 months’ imprisonment. In respect of the dangerous driving charge, the appellant was sentenced to one month imprisonment to be served concurrently and was disqualified from holding or obtaining a drivers licence for eight months.

The appellant argued that the effective starting point adopted by the Judge for the charge of burglary was too high. He also claimed that the Judge erred by failing to apply a discount for the expressed remorse. The Court held that the effective starting point of two years and three months was out of step with comparable cases and considered that a starting point of 18 months was indicated by comparison with cases with a similar range of aggravating features. The issue then was whether, in the balance of the sentencing exercise, the Court would still arrive at approximately the same point. The Court concluded that it would not disturb the sentence. The Court also found that there was no error in declining to allow any further credit for the expressed remorse and desire for rehabilitation.

The appeal was allowed, and the sentence of two years 11 months’ imprisonment was quashed and a sentence of two years and three months’ imprisonment was substituted on the charges of burglary and dishonestly using a document. The sentence for dangerous driving remained untouched.

Orders