Aitken v R - [2022] NZCA 593

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA6/2022
[2022] NZCA 593

BETWEEN	JOHN AITKEN Appellant
AND	THE KING Respondent

Hearing:	30 September 2022
Court:	Miller, Brewer and Moore JJ
Counsel:	C G Tuck, X Wang and A O Belloir-Spense for Appellant B J Thompson for Respondent
Judgment:	1 December 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Background

John Aitken was charged with injuring with intent to cause grievous bodily harm[1] and threatening to kill[2] after he violently attacked a person who he believed had assaulted his son a few days earlier.
[1]Crimes Act 1961, s 189(1). Maximum penalty of 10 years’ imprisonment.
[2]Crimes Act 1961, s 306(1)(a). Maximum penalty of seven years’ imprisonment.
Mr Aitken elected trial by jury. On the morning his trial was scheduled to start, he sought an adjournment in order to locate and call a witness in his defence. He claimed the assault in question was a pre-emptive strike which was justified in self‑defence. Apparently, the witness could give evidence of events which occurred about three days before the assault.
Judge Harding declined to grant an adjournment.[3] He considered that the unavailability of the witness would not adversely affect Mr Aitken’s fair trial rights because the availability of an effective defence on the basis advanced in argument was “slim”.[4]
[3]R v Aitken [2021] NZDC 18502.
[4]At [9]–[10].
Mr Aitken then pleaded guilty to both charges. On 15 December 2021, the Judge sentenced him to four years and nine months’ imprisonment.[5]
[5]R v Aitken [2021] NZDC 24869 [Sentencing notes].
Mr Aitken initially sought to appeal both his conviction and sentence. He has since abandoned his conviction appeal. This judgment deals with the sentence appeal.

The offending

On 24 February 2021, the victim, B, was sitting on a bench outside shops in Mount Maunganui. Mr Aitken parked his vehicle outside the shops and got out. He walked directly towards B.
Mr Aitken then meted out a violent and sustained assault on B. He punched him about 10 times to the head and upper body. B was knocked unconscious and fell from the bench onto the footpath. With B on the ground, Mr Aitken continued his attack. He stomped on B’s upper body, kicked him twice in the head, struck his head twice, and then a third time before, finally, punching him in the head another two times.
During the assault Mr Aitken told B to get out of town otherwise he would kill him. He asked him why he had picked on his son. B’s cousin was present as these events unfolded. She shouted at Mr Aitken asking what B had done. Mr Aitken’s response was that B “shouldn’t go around smashing up 12 year old boys”. He told her that if she did not “shut up” he would cut off B’s head and kill her with it.
Mr Aitken then left in his car.

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 Aitken v R

Details

AGLC: Aitken v R [2022] NZCA 593
Case: [2022] NZCA 593
Decision Date: 1 December 2022 at 11.00 am

CaseChat Overview and Summary

John Aitken appealed against the sentence of four years and nine months’ imprisonment imposed on him after he pleaded guilty to injuring with intent to cause grievous bodily harm and threatening to kill. He argued that the starting point for his sentence was too high and that insufficient credit was given for personal mitigating factors. The appeal was dismissed by the Court of Appeal of New Zealand. The court found that the starting point was within the range that could properly be justified by accepted sentencing principles. It also found that the Judge gave sufficient credit for personal mitigating factors, such as Mr Aitken's remorse, rehabilitative efforts, and participation in a successful restorative justice conference.

The court concluded that the sentence was not manifestly excessive and was within the range that could properly be justified by accepted sentencing principles. The appeal was dismissed, and the original sentence was upheld. The court found that the Judge had properly considered the aggravating and mitigating factors in arriving at the sentence. The starting point was within the range that could properly be justified by accepted sentencing principles, and the discount for personal mitigating factors was also within the available range. The court found no error in the sentence imposed by the Judge.

Orders