Allerby v Police - [2012] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000007 [2012] NZHC 622

BETWEEN MARK JOHN ALLERBY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 April 2012

Counsel: J C Hannam for Appellant
A S Law for Respondent

Judgment: 2 April 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] The appellant appeals sentences imposed in the District Court following his pleas of guilty to:

(1) a charge of wounding with intent to cause grievous bodily harm

(GBH); and

(2) a charge of wounding with intent to injure. [2] The sentences imposed were:
(1) four years and six months in relation to the GBH charge; and

(2)two years and six months in relation to the charge of wounding with intent to injure.

ALLERBY V NEW ZEALAND POLICE HC NWP CRI-2012-443-000007 [2 April 2012]

Background

[3] The events leading to the charges are fully set out in the District Court

Judge’s notes on sentencing dated 8 February 2012. In summary:

(1)On 7 October 2011 the appellant purchased a .177 calibre Phantom air rifle and slug pellets from a sports store in Stratford. The rifle is said to be able to fire a pellet at 1,000 feet per second.

(2) Later that day the appellant and associates began consuming alcohol.

They started shooting at various targets, such as cans and glass bottles.

(3)The appellant then returned to the sports store to ask for advice on how to shoot straight. He purchased more pellets and was told that the air rifle could kill small animals such as possums and rabbits.

(4)On returning home the appellant became involved in a confrontation with the first victim. The appellant pointed the loaded air rifle at this victim and shot him in the leg.

(5)The victim suffered a significant amount of blood loss. He was admitted to Taranaki Base Hospital where he underwent surgery and was treated in hospital over a period of three days.

(6)After this incident the appellant shot the second victim, who was working at a neighbouring property. It appears the appellant shot this victim through a hedge that separated his property from the property where the second victim worked.

(7)The second victim was hit in his left elbow. He was also taken to the Taranaki Base Hospital where he underwent surgery and was treated over a five day period.

Guilty pleas

[4] The appellant pleaded guilty in the Hawera District Court on 15 November

2011 to the GBH charge in relation to the first victim and the charge of wounding with intent to injure in relation to the second victim.

Sentencing decision

[5] In his sentencing decision the District Court Judge:

(1) fully set out the facts admitted by the appellant; (2) referred to the fact the appellant was 18 years old;
(3)referred to the appellant’s criminal record commencing with an appearance in the Hawera Youth Court on 12 March 2010 followed by a series of 14 convictions during the course of 2010 and 2011 on a variety of charges, including burglary and breach…

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 Allerby v Police

Details

AGLC: Allerby v Police [2012] NZHC 622
Case: [2012] NZHC 622
Decision Date: 2 April 2012

CaseChat Overview and Summary

In the case of Mark John Allerby, the appellant, versus New Zealand Police, the respondent, the High Court heard an appeal against the sentences imposed by the District Court. The appellant had pleaded guilty to charges of wounding with intent to cause grievous bodily harm and wounding with intent to injure. The District Court had sentenced the appellant to four years and six months for the grievous bodily harm charge and two years and six months for the wounding with intent to injure charge, both to run concurrently. The primary issue before the High Court was whether the District Court overstated the seriousness of the appellant's conduct in sentencing.

The High Court considered the appellant's arguments that the seriousness of his conduct was overstated and that the starting point for sentencing should have been within band one of the Taueki classification, suggesting a three to six year range. The Crown argued that the District Court Judge accurately applied the Taueki principles and that the sentence imposed was well within the range reasonably available to the District Court Judge.

The High Court concluded that while the District Court Judge correctly identified some of the aggravating factors, it did not agree with the assessment that three of the Taueki aggravating factors were present. The Court found that the use of a weapon was an aggravating factor but did not consider the injuries inflicted or the premeditation to be special aggravating factors. The Court determined that the case was on the cusp of the first and second Taueki bands and maintained the five-year starting point but reduced the sentence by six months to account for the appellant's age, a mitigating factor. The Court also found that the sentence for the wounding with intent to injure charge was appropriate and should not be altered. Consequently, the appeal against the sentence for grievous bodily harm was allowed, and a sentence of four years was substituted for that offence, while the two years and six months sentence for wounding with intent to injure remained unchanged and was to be served concurrently.

Orders