Ware v Police - [2021] NZHC 3320

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-44

[2021] NZHC 3320

BETWEEN
RHYS WARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 December 2021 (VMR)

Counsel:

P J Mooney for Appellant

J M Marinovich for Respondent

Judgment:

6 December 2021

JUDGMENT OF ELLIS J

[1] On 11 October 2021, Mr Ware was sentenced in the District Court to 10 months’ home detention, after pleading guilty to one charge of burglary on the first day of his trial.1 He now appeals that sentence.

[2] Appeals against sentence are governed by s 250 Criminal Procedure Act 2011. Such an appeal should only be allowed if the Court is satisfied that there was an error in the sentence imposed or a different sentence should have been imposed. It is trite that, when considering if the sentence imposed is manifestly excessive, the focus is on the end result, not the process by which the sentence was reached.2

[3] In this case, the Crown accepts by the Crown that the sentencing Judge erred by not taking into account as a mitigating factor the time Mr Ware had spent on

1 Police v Ware [2021] NZDC 20136.
2 But see, for example, Ripia v R [2011] NZCA 101 at [15].

WARE v NEW ZEALAND POLICE [2021] NZHC 3320 [6 December 2021]

EM bail and by understating the time he had also spent in custody on remand. So the questions on appeal are:

(a)whether these errors resulted in an end sentence that is outside the available range; and

(b)if so, what sentence should be substituted.

Background

The offending

[4]Briefly put:

(a)on Monday 26 October 2020, between 11 am and 4.05 pm, Mr Ware
was at 17 Holford Street, Westown, New Plymouth;

(b)while one of the residents and her family were out for lunch, he gained entry to the house by breaking a bedroom window and climbing through it;

(c)once inside, Mr Warr ransacked the house, taking food, a stereo, a TV and Freeview set, a laptop, an iPhone 6, and a wallet containing a driver’s licence and two debit cards;

(d)he left the house, taking those items with him.

[5] The cell phone and laptop have since been returned to her through someone who knew Mr Ware. The other things taken have not been recovered.

[6]Mr Ware was arrested and charged with burglary (by day, $500–$5,000).

Previous convictions

[7] Mr Ware’s criminal history includes five convictions for burglary (three for burglary under $500, one for $500–$5,000, and one for over $5,000). Over the last

13 years he has also accrued convictions for aggravated robbery, five for shoplifting, four for receiving, eight for theft/theft ex-car, and eight for using a document for pecuniary advantage.³

The sentencing

[8] After taking into account Mr Ware’s previous relevant convictions, the Judge adopted a starting point of 24 months’ imprisonment.4 He afforded a discount of one month for Mr Ware’s late guilty plea. The Judge then converted the sentence of…

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 Ware v Police

Details

AGLC: Ware v Police [2021] NZHC 3320
Case: [2021] NZHC 3320
Decision Date: 6 December 2021

CaseChat Overview and Summary

Rhys Ware appeals his sentence of 10 months’ home detention, imposed after he pleaded guilty to burglary. The appeal raises two issues: whether the District Court Judge erred by not taking into account the time Ware spent on electronically monitored (EM) bail as a mitigating factor, and whether the Judge erred by understating the time Ware had spent in custody on remand. The Crown accepts that these errors resulted in a sentence that is outside the available range. The Court must decide what sentence should be substituted.

The Court held that time spent on EM bail must be taken into account as a mitigating factor before deciding on the end sentence. The Court disagreed with the approach in Tai v R, which suggested that such time could be taken into account after the decision to convert to home detention was made. The Court found that the Judge’s failure to take into account the time Ware spent on EM bail resulted in a sentence that was manifestly excessive. The Court also held that time spent in custody on remand should be deducted on a day-for-day basis from the end home detention sentence. The Court found that the Judge’s failure to adequately account for the time Ware spent in custody on remand also resulted in a sentence that was manifestly excessive.

The Court concluded that the appropriate discount for the time Ware spent on EM bail would be slightly over 50 per cent—five months—giving an end sentence of 18 months’ imprisonment, which would convert to nine months’ home detention. Once the nine weeks spent in custody on remand were taken into account, the end sentence would be seven months’ home detention. The Court allowed the appeal and substituted a sentence of seven months’ home detention.

Orders