Wright v Police - [2013] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000039 [2013] NZHC 308

BETWEEN DEON WAYNE WRIGHT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 25 February 2013

Appearances: J A G Moroney for Appellant
R See for Respondent

Judgment: 25 February 2013

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Auckland
Thode Utting & Co, Albany

WRIGHT V NZ POLICE HC AK CRI-2013-404-000039 [25 February 2013]

[1] On 8 February 2013, having pleaded guilty to a charge of theft, the appellant was sentenced to imprisonment for nine months. Judge Dawson had taken a starting point of 10 months, reduced it to eight months to reflect the early guilty plea, and then uplifted the sentence by one month to take account of the remission of fines of
$3,132.89.

[2] The appellant appeals on the basis the sentence was manifestly excessive and that the Court should have adjourned the matter for consideration of community or home detention appendix.

[3] The circumstances of the theft were as follows. The appellant was at the address of the complainant at her invitation. They apparently had a relationship of sorts. The appellant was performing cleaning and maintenance around the property in lieu of paying rental. The appellant found a nine carat gold necklace, a ring and a bangle while at the property. He concealed them and later sold them to Dollar Dealers Ltd, a second-hand dealer, for $770. The jewellery has apparently been recovered by the complainant but Dollar Dealers, who paid the appellant $770 for it, remains out of pocket.

[4] At the age of today, 40, the appellant has a substantial list of convictions for dishonesty offending, including burglary, theft and other dishonesty offending.

[5] In support of the appeal Mr Moroney has raised the following submissions. He submits that Judge Dawson erred:

in adopting a starting point that was excessive;

by not having regard to relevant mitigating factors that would have justified a further reduction on that starting point;

by failing to give sufficient credit for the early guilty plea;

indeclining an application for adjournment to enable a community and/or home detention report to be completed; and

by remitting the fine which he had no jurisdiction to do, and in any event the one month cumulative sentence for that was manifestly excessive.

[6] Save for the last point, namely jurisdiction to remit the fine, the Crown opposes the appeal and supports the Judge’s sentence.

[7] It is apparent from the authority of Blandford v Police1 and the Court of Appeal decisions referred to in that case that the Judge did not have jurisdiction to remit the fines without following the procedure in ss 83 or 88 of the Summary Proceedings Act 1957. That is conceded by the Crown. Accordingly, there was no jurisdiction to remit the fines and impose the additional one month sentence of imprisonment. I will return to the effect of that later.

[8] Addressing the other points on appeal, Mr Moroney submitted that the appellant instructed that he had declined…

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 [2013] NZHC 308
Case: [2013] NZHC 308
Decision Date: 25 February 2013

CaseChat Overview and Summary

Deon Wayne Wright has appealed against his nine-month imprisonment sentence, imposed following his guilty plea to theft. The respondent, New Zealand Police, opposed the appeal. The primary issues before the court were whether the sentence was manifestly excessive, and if the court should have adjourned the matter for consideration of community or home detention. The court considered the appellant's criminal history, the value of stolen items, and the appellant's early guilty plea. The court found that the appellant's criminal history justified a higher starting point and that the reduction for the early guilty plea was appropriate. The court also held that the judge was correct in concluding that imprisonment was the appropriate sentence. However, the court found that the judge did not have jurisdiction to remit the fines and impose a one-month sentence of imprisonment, and thus the appeal was allowed to the extent of quashing that order. The fines of $3,132.89 were reinstated, and the appellant remains subject to a sentence of eight months' imprisonment.

Orders