Trainor v Police - [2020] NZHC 322

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000192

CRI-2019-409-000193 [2020] NZHC 322

BETWEEN
ANDREW STEVEN TRAINOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2020

Appearances:

A J Trainor (Appellant) in person – by AVL A Harvey for Respondent

Judgment:

28 February 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 28 February 2020 at 11.30 am

Registrar/Deputy Registrar

Date:

TRAINOR v NEW ZEALAND POLICE [2020] NZHC 322 [28 February 2020]

Introduction

[1] Andrew Trainor, the appellant, pleaded guilty to breaching a home detention sentence which was imposed on 26 August 2019.1 The sentence of home detention was imposed for offending in March 2018 (burglary) and February 2019 (petrol drive offs, failing to stop, driving whilst disqualified, reckless driving, and possession of a methamphetamine pipe). On 10 December 2019 Judge Kellar cancelled the appellant’s sentence of home detention and re-sentenced him to two years and one month’s imprisonment.2 The appellant appeals this sentence.

Facts

[2] On 29 March 2018 the appellant broke into a shed in Waikuku and stole a red 1989 Holden Berlina station wagon valued at $6,000. He sold the car to a third party who later realised the car was stolen and contacted the police.

[3] While on bail for the burglary charge, and during a period of disqualification from driving:

(a)On 3 January 2019 the appellant was observed driving a car using a cell phone and not wearing a seat belt. He failed to stop when signalled to by the police.

(b)On 1 February at 11.37 am the appellant drove to a petrol station in Darfield. He filled his vehicle with $50 worth of petrol and drove out of the forecourt without paying.

(c)At 12.08 pm the appellant drove to a petrol station in Oxford. He filled the same vehicle with $73 worth of petrol and drove away without paying.

1 Police v Trainor [2019] NZDC 17026.
2 Police v Trainor [2019] NZDC 24939.

(d)At 12.36 pm police signalled the appellant to stop as his vehicle was sought in relation to the two petrol thefts. The appellant did not stop, and the police pursued him.

(e)During this pursuit the appellant drove at speed, drove on the wrong side of a raised centre island, through a stop sign and swerved towards oncoming vehicles. The police abandoned the pursuit.

(f)Shortly after this chase the appellant was located walking along Tram Road, Swannanoa. The vehicle was found in a private driveway. Two glass pipes used for methamphetamine were found inside the vehicle.

[4] On 26 August 2019 Judge Kellar sentenced the appellant to nine months’ home detention at Odyssey House on the above charges.

[5] Four days later, on 31 August, the appellant removed his electronic monitoring bracelet and absconded from Odyssey House. On 3 September Odyssey House discharged him from the programme.

District Court decisions

Sentencing decision – 26 August 2019

[6] Judge Kellar considered the appellant had a high risk of re-offending due…

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 Trainor v Police

Details

AGLC: Trainor v Police [2020] NZHC 322
Case: [2020] NZHC 322
Decision Date: 28 February 2020

CaseChat Overview and Summary

In this case, the appellant, Andrew Trainor, appealed against his sentence imposed by the District Court for breaching his home detention and for his original criminal offending. The court had to determine whether there had been an error in the imposition of the sentence and whether a different sentence should have been imposed. The appellant argued that there had been no restorative justice and no cultural report, which he believed may have led to a different outcome. The respondent submitted that the appellant had left the court with no alternative to imprisonment and that the Judge’s starting point, uplifts, and discount were all appropriate.

The court found that the Judge had correctly taken the burglary as the lead offence and applied an appropriate starting point. The uplifts applied by the Judge were also appropriate, reflecting the extent of other offending, the fact that it occurred while the appellant was already serving other sentences, and the nature of the appellant’s past history of dishonesty and offending. The full 25 per cent discount for the appellant’s guilty plea brought his potential sentence down to two years and three months. On re-sentencing, the Judge recorded that the appellant was effectively being resentenced to one year and 10 months’ imprisonment, which was well within range. The two matters the appellant wished to refer to were best viewed as matters argued by way of mitigation. The court found that the end sentence of two years and one month’s imprisonment was not manifestly excessive.

The court dismissed the appeal and upheld the District Court’s sentence of two years and one month’s imprisonment.

Orders