IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE	
CRI-2020-442-002
[2020] NZHC 1498	

NORTON LLOYD REWITI-MANNING	

v	

NEW ZEALAND POLICE	

Hearing:	30 June 2020	
Appearances:	M J Vesty for the Appellant
S K O’Donoghue for the Respondent	
Judgment:	30 June 2020	

JUDGMENT OF COOKE J

[1]	Mr Rewiti-Manning pleaded guilty to a charge of burglary in the District Court at 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 as admitted he could not have been guilty of the offence charged. The Crown do not oppose 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. The summary alleges that the pair approached a secure storage container used by the café.

1	Crimes Act 1961, s 231, maximum penalty 10 years’ imprisonment.

REWITI-MANNING v NEW ZEALAND POLICE [2020] NZHC 1498 [30 June 2020]

They then attempted to break a padlock on the container using bolt cutters for about 10 minutes but were unsuccessful.

[4]	Mr Rewiti-Manning appeared in the District Court at Nelson on 25 May to enter guilty pleas. There he was represented by the duty solicitor. The Judge queried why the charge was not a charge of attempt given the pair were unsuccessful in breaking the lock. The officer present explained that the offence is complete once the bolt cutters entered the lock cover. The Judge appeared to accept that and moved on to a discussion of the appropriate sentence.

[5]	The duty solicitor submitted a sentence of community work would be appropriate given the pair did not successfully break in to the container. The Judge accepted 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 Criminal Procedure 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 an appeal against conviction where the conviction was entered by guilty plea.3 Appeals against conviction proceed by way of rehearing.4 If the appeal is allowed the Court may make any order it considers justice requires.5

Analysis

[7]	Mr Vesty for the appellant submits that no conviction ought to have been entered on the offence as charged as the facts did not support the charge. I agree for the reasons set out below.

[8]	The offence of burglary is committed where a person enters or remains in a building without authority with intent to commit an offence therein. A storage container 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. The

2	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 part of the storage. I consider, and the Crown accepts, that a lock cover is not a building or structure. It follows the appeal must succeed and the conviction for burglary quashed.

[9]	The Crown submits, and defence agree, that the appropriate charge is one of attempted 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 may direct judgment for conviction for a different offence if satisfied that the facts admitted by the convicted person in support a conviction for a different offence. The facts as admitted 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 sentence imposed 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 the offending was more in the nature of an attempted burglary, Mr O’Donoghue for the Crown accepts that there should be a reduction in the sentence. He explained that the appellant had not had previous convictions of this kind of offending, and that when apprehended that he was cooperative with the Police. He submitted that the sentence should essentially be halved, which is proportionate to the lower maximum penalty for the substituted offending. He also submitted that the number of hours of community work could be rounded down to be 85 hours. Mr Vesty for the appellant agreed with that course. In the circumstances I agree that this reduced sentence is appropriate.

[11]	The appeal is allowed, and under s 234 of the Criminal Procedure Act a conviction for attempted burglary under ss 77, 311 and 231 of the Crimes Act 1961 is substituted for the charge of burglary imposed by the District Court. The sentence imposed will now be 85 hours community work rather than 175 hours imposed by the District Court.

Cooke J

7	Crimes Act 1961, ss 77, 311 and 231, maximum penalty five years’ imprisonment.
8	Criminal Procedure Act 2011, s 234(5).