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Archbold v R

Archbold v R

Case [2015] NZCA 493 23 October 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/2015
[2015] NZCA 493

BETWEEN	SHANE COLIN EDWARD ARCHBOLD Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	R G Glover for Appellant J E L Carruthers for Respondent
Judgment:	23 October 2015 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of five years’ imprisonment is quashed and a sentence of four years eight months substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Shane Archbold was convicted on one charge of aggravated burglary following a jury trial in the Christchurch District Court. Judge O’Driscoll imposed a sentence of five years’ imprisonment.[1] The Judge reached this sentence by taking a starting point of four and a half years’ imprisonment and uplifting that by six months to reflect Mr Archbold’s previous convictions.
[1]R v Archbold [2015] NZDC 1125. Judge O’Driscoll also imposed a cumulative sentence of six months’ imprisonment on a separate charge of escaping from custody, and a sentence of one month’s imprisonment on a charge of resisting arrest to be served concurrently with the escape sentence. Those sentences are not challenged and nor is any issue of totality raised.
Mr Archbold appeals the sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point. There was no direct challenge to the uplift but, for the reasons we discuss later, we have also considered that aspect of the sentence.

Offending and sentencing in the District Court

Mr Archbold went to a residential address on the morning of 21 March 2014 for the purpose of collecting money from the complainant. What happened next was the subject of conflicting accounts at trial but the jury clearly preferred the complainant’s account and the Judge sentenced on the basis of that account.
Judge O’Driscoll’s description of the offending was as follows:
[7]       The evidence of the victim was that he woke to find you at the end of his bed and that you demanded money from him. When he said that he did not have any money, his evidence was that you punched him in the forehead and then took a tyre iron that was in the room and his evidence was that you indicated to him that you were going to take out his eye. There was evidence that there was a struggle in the room and there was evidence, which I find the jury accepted, that you then struck the victim over the head with the coffee table. That, again, was also in the room.
[8]       The victim attempted to contact the police. There was, according to him, a threat made about calling the police. You left the scene.
[9]       It would appear that, whatever happened, there was a tussle involving you and the victim. If you were assaulted or injured to any extent in what occurred, I think that you only have yourself to blame for…

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 Archbold v R

Details

AGLC: Archbold v R [2015] NZCA 493
Case: [2015] NZCA 493
Decision Date: 23 October 2015 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Shane Colin Edward Archbold against his sentence imposed by the Christchurch District Court for a charge of aggravated burglary. Archbold was found guilty of entering a residence with the intent to collect money and assaulting the occupant with a weapon, a tyre iron. Judge O'Driscoll imposed a sentence of five years’ imprisonment, taking a starting point of four and a half years and increasing it by six months to reflect Archbold’s previous convictions for violence.

Archbold appealed on the ground that the sentence was manifestly excessive, arguing that the starting point was too high. The Court noted that Judge O'Driscoll had carefully considered the elements of the charge, the nature of the assault, and the maximum penalty, but did not refer to relevant authorities, particularly R v Mako. The Crown argued that the starting point was within the range available based on similar cases. The Court concluded that the overall level of criminality was comparable to that in similar cases and that the starting point of four years six months, while stern, was within the appropriate range.

Regarding the uplift for previous convictions, the Court considered that an uplift of six months was too high. Archbold had nine convictions for violence, but most of these were several years old, and there was no pattern of recent offending. The Court found that an appropriate uplift would have been two months, ensuring that any uplift is genuinely necessary and only imposed to the extent required. Consequently, the appeal was allowed, the sentence of five years’ imprisonment was quashed, and a sentence of four years eight months was substituted.

Orders