Wright v Police - [2015] NZHC 3016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000037 [2015] NZHC 3016

BETWEEN
JACOB ANDREW WRIGHT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 November 2015

Appearances:

A C Leonard for the Appellant
R P Bates for the Respondent

Judgment:

1 December 2015

JUDGMENT OF NATION J

Introduction

[1] Between 18 January 2014 and 12 November 2014, Mr Wright dishonestly took $5,926.43 from his employer. On the two charges he faced in relation to this dishonesty, he was sentenced to 10 months’ imprisonment with supervision on special conditions to apply for six months at the end of that sentence. He appeals against that sentence as manifestly excessive.

[2] When he was originally sentenced, he sought a sentence of home detention. That submission was not made by his counsel on this appeal. Ms Leonard submitted that the end sentence should have been six months’ imprisonment.

[3] Sections 250(2) and (3) of the Criminal Procedure Act 2011 apply here and provide:

250 First appeal court to determine appeal

…

WRIGHT v POLICE [2015] NZHC 3016 [1 December 2015]

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[4] As was said by Toogood J:1

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[5] Judge Crosbie adopted a starting point for the offending of 15 to 18 months before a credit for remorse and guilty pleas.

[6] Ms Leonard submitted that the starting point was too high and out of step with sentences for similar offending.2 She referred to three cases in particular. I considered those cases.

[7] Mr Wright faced two charges:

· one charge of theft by a person in a special relationship (representative), ss 220 and 223(a) Crimes Act 1961 – maximum penalty seven years’ imprisonment;

· one charge of obtaining by deception, s 240(1)(a) Crimes Act 1961, value $880 – maximum penalty one year imprisonment.

[8] Mr Wright worked for a Dunedin company involved with property management for some eight years. He initially worked as a property manager before being promoted to an operations manager role in 2013. He oversaw the management
of over 600 properties and was responsible for eight staff. Part of his role was to

1 Larkin v Ministry of Social Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101 at [15], adopted by Gendall J in Affleck v R [2015] NZHC 1741.
2 Thomson v Police HC Christchurch CRI-2006-409-134, 17 August 2006; Nathan v Police HC Rotorua CRI-2005-463-56, 17 August 2005; Dry v Police HC Christchurch AP271/90, 16
October 1990.

manage the financial…

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 Wright v Police

Details

AGLC: Wright v Police [2015] NZHC 3016
Case: [2015] NZHC 3016
Decision Date: 1 December 2015

CaseChat Overview and Summary

Jacob Andrew Wright appeals his sentence of 10 months’ imprisonment with supervision on special conditions to apply for six months at the end of that sentence, imposed on two charges of theft by a person in a special relationship and obtaining by deception. The Crown accepts that there was an error in the sentence, but submits that the sentence was not manifestly excessive and was within the appropriate range. The Court considers whether there was an error in the sentence imposed on conviction and whether a different sentence should be imposed. The Court holds that the Judge did not make an error in the sentence imposed and that the appeal should be dismissed.

The key legal issue is whether the sentence was manifestly excessive. The Court considers whether the starting point for the offending was appropriate and whether the Judge had appropriately considered the personal circumstances of the offender. The Court holds that the starting point for the offending was appropriate and that the Judge had appropriately considered the personal circumstances of the offender. The Court also considers whether the Judge had appropriately considered the discounts for remorse and guilty pleas. The Court holds that the Judge had appropriately considered the discounts for remorse and guilty pleas. The Court holds that the sentence was not manifestly excessive and that the appeal should be dismissed.

Orders