REWITI-MANNING v NEW ZEALAND POLICE [2020] NZHC 1498

REWITI-MANNING v NEW ZEALAND POLICE [2020] NZHC 1498 [30 June 2020]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2020-442-002[2020] NZHC 1498NORTON LLOYD REWITI-MANNINGvNEW ZEALAND POLICEHearing: 30 June 2020Appearances: M J Vesty for the AppellantS K O'Donoghue for the RespondentJudgment: 30 June 2020JUDGMENT OF COOKE J[1] Mr Rewiti-Manning pleaded guilty to a charge of burglary in the District Courtat Nelson and was sentenced to 175 hours of community work.1[2] Mr Rewiti-Manning appeals his conviction on the grounds that on the facts asadmitted he could not have been guilty of the offence charged. The Crown do notoppose the appeal.Background[3] The summary of facts records that on Thursday 9 April 2020 Mr Rewiti-Manning and his co-defendant were at a café establishment at Richmond, Nelson. Thesummary alleges that the pair approached a secure storage container used by the café.1 Crimes Act 1961, s 231, maximum penalty 10 years' imprisonment.They then attempted to break a padlock on the container using bolt cutters for about10 minutes but were unsuccessful.[4] Mr Rewiti-Manning appeared in the District Court at Nelson on 25 May toenter guilty pleas. There he was represented by the duty solicitor. The Judge queriedwhy the charge was not a charge of attempt given the pair were unsuccessful inbreaking the lock. The officer present explained that the offence is complete once thebolt cutters entered the lock cover. The Judge appeared to accept that and moved onto a discussion of the appropriate sentence.[5] The duty solicitor submitted a sentence of community work would beappropriate given the pair did not successfully break in to the container. The Judgeaccepted that and imposed a sentence of 175 hours of community work.Relevant law[6] This is a first appeal against conviction pursuant to s 232 of the CriminalProcedure Act 2011. The Court must allow the appeal if satisfied that, for any reason,a miscarriage of justice has occurred.2 Section 232 contemplates the possibility of anappeal against conviction where the conviction was entered by guilty plea.3 Appealsagainst conviction proceed by way of rehearing.4 If the appeal is allowed the Courtmay make any order it considers justice requires.5Analysis[7] Mr Vesty for the appellant submits that no conviction ought to have beenentered on the offence as charged as the facts did not support the charge. I agree forthe reasons set out below.[8] The offence of burglary is committed where a person enters or remains in abuilding without authority with intent to commit an offence therein. A storagecontainer can constitute a building,6 but the summary of facts records that Mr Rewiti-Manning and his co-offender never managed to break the lock and gain entry. The2 Criminal Procedure Act 2011, s 232(2).3 Section 232(5).4 Sections 229 and 232.5 Section 233.6 Section 231, definition of "building", para (2).police case was that the cover over the lock was part of the building and once was partof the storage. I consider, and the Crown accepts, that a lock cover is not a buildingor structure. It follows the appeal must succeed and the conviction for burglaryquashed.[9] The Crown submits, and defence agree, that the appropriate charge is one ofattempted burglary and the Court should substitute a conviction for that offence.Section 234(4) of the Criminal Procedure Act provides that the first appeal court maydirect judgment for conviction for a different offence if satisfied that the facts admittedby the convicted person in support a conviction for a different offence. The facts asadmitted in the summary of facts support a conviction for attempted burglary.7[10] The next question is whether there should be any adjustment to the sentenceimposed as a consequence, or whether the matter should be remitted for re-sentencing.8 Although the District Court Judge appears to have been aware that theoffending was more in the nature of an attempted burglary, Mr O'Donoghue for theCrown accepts that there should be a reduction in the sentence. He explained that theappellant had not had previous convictions of this kind of offending, and that whenapprehended that he was cooperative with the Police. He submitted that the sentenceshould essentially be halved, which is proportionate to the lower maximum penaltyfor the substituted offending. He also submitted that the number of hours ofcommunity work could be rounded down to be 85 hours. Mr Vesty for the appellantagreed with that course. In the circumstances I agree that this reduced sentence isappropriate.[11] The appeal is allowed, and under s 234 of the Criminal Procedure Act aconviction for attempted burglary under ss 77, 311 and 231 of the Crimes Act 1961 issubstituted for the charge of burglary imposed by the District Court. The sentenceimposed will now be 85 hours community work rather than 175 hours imposed by theDistrict Court.Cooke J7 Crimes Act 1961, ss 77, 311 and 231, maximum penalty five years' imprisonment.8 Criminal Procedure Act 2011, s 234(5).