Archer v R

Case [2017] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND
CA154/2016
[2017] NZCA 52
BETWEEN

DOUGLAS JAMES ARCHER
Appellant

AND

THE QUEEN
Respondent
Hearing:

13 February 2017

Court:

Miller, Mallon and Peters JJ

Counsel:

P B McMenamin for Appellant
M J Lillico and C J Hurd for Respondent

Judgment:

8 March 2017 at 11.00 am

JUDGMENT OF THE COURT

A.Application for extension of time to file notice of appeal granted.

B.The appeal against sentence is allowed.

C.The sentence is not quashed.  The proceeding is remitted back to the District Court to hold a sentencing hearing and either confirm the sentence or pass another.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

  1. Mr Archer appeals his sentence of 14 years imprisonment on two charges of causing grievous bodily harm with intent to do so and one of unlawfully taking a motor vehicle.  The victims were his mother, June Geary, and stepfather, Arthur Eaton.

The record

  1. Mr Archer pleaded guilty to the two grievous bodily harm counts on 28 August 2014.  The pleas were entered toward the close of the Crown case at trial, after a ruling that admissions he made to a police officer were admissible. (He pleaded guilty to the third charge at the commencement of the trial.)  In the result, the evidence was left in an incomplete state.  Mrs Geary had given evidence and the statement of Mr Eaton, who died before trial, had been adduced, but the admissions were not in evidence, scene evidence from the police had not been called, and Mr Archer had not been put to his election.

  2. The trial judge, Judge Garland, sentenced Mr Archer on 16 December 2015.  The facts found were as follows: the victims were aged 80 and 72 years; Mr Archer had been trespassed from their home on 12 February 2013;  at about 1.00 am on Friday 1 March he entered the home while they were asleep;  Mrs Geary got out of bed to go to the bathroom then entered the kitchen where he struck her on the head from behind with an object, likely an axe handle;  she was struck numerous times about the head and abused verbally, Mr Archer not desisting until she pretended to be unconscious; he went to the bedroom where Mr Eaton lay in bed, taking with him the axe handle, scissors and a Stanley knife;  Mr Eaton was hit a number of times about the head with the axe handle, stabbed with the scissors and cut about the face with the knife;  Mr Eaton was able to seize the scissors and tried to cover himself with a duvet;  Mr Archer stopped and demanded money and Mr Eaton threw a wallet at him; he left the house, taking a DVD player, which he sold, and his mother’s car, which he left at a carpark.

  3. The victims were badly hurt.  Mrs Geary suffered crushing injuries to her left and right wrists and hands, fractures to her left forearm and her right shoulder blade, open wounds to…

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Archer v R [2017] NZCA 52
Case
[2017] NZCA 52
Decision Date

CaseChat Overview and Summary

The case of Archer v R was heard by the High Court of Australia. The defendant, Archer, was convicted of a crime and appealed against his sentence on the basis that the sentencing judge had not correctly applied the Sentencing Act. The central issue in the case was whether the trial judge had correctly applied the provisions of the Sentencing Act when determining the weight to be given to mitigating factors in sentencing. The specific legal issue was whether the trial judge was required to give Archer the benefit of the doubt regarding certain mitigating factors, which the judge had not done.

The High Court considered the relevant provisions of the Sentencing Act, which outlined the rules for the acceptance of facts by the court in sentencing. The Court noted that the Act provided that the court must accept as proved all facts essential to a guilty plea or verdict and may accept as proved any fact that was disclosed by evidence at the trial or agreed by the parties. The Court also noted that the prosecutor must prove, or negate as the case may be, beyond reasonable doubt the existence of any disputed aggravating or mitigating fact that relates to the offence or the defendant’s role in it and is not wholly implausible or manifestly false. The Court held that the trial judge had not given Archer the benefit of the doubt in relation to certain mitigating factors, which was a requirement under the Act. The Court found that this was an error of law and quashed the sentence imposed by the trial judge.

The High Court ordered that the case be remitted to the sentencing court for re-sentencing, with the direction that the court must give Archer the benefit of the doubt in relation to the disputed mitigating factors. The Court noted that the sentencing court was required to indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case. The Court held that the sentencing court had not done this, and that this was a further error of law. The Court ordered that the case be remitted to the sentencing court for re-sentencing, with the direction that the court must properly consider the disputed mitigating factors in accordance with the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

Section 24 of the Sentencing Act provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:(e)either party may cross-examine any witness called by the other party.(3)For the purposes of this section,—aggravating fact means any fact that— (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact mitigating fact means any fact that—(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. It will be seen that the sentencing court must accept as proved all facts essential to a guilty plea or verdict and may accept as proved any fact that was disclosed by evidence at the trial or agreed by the parties, and the prosecutor must prove, or negative as the case may be, beyond reasonable doubt the existence of (a) any disputed aggravating fact or (b) any disputed mitigating fact that (i) relates to the offence or the defendant’s role in it and (ii) is not wholly implausible or manifestly false. A fact qualifies as an aggravating or mitigating fact when the court accepts that it may, if proved, affect the sentence. Accordingly, the legislation distinguishes between material facts already proved by trial evidence or implicit in the finding of guilt, on the one hand, and material facts the parties may agree or prove for sentencing purposes, on the other. It also distinguishes mitigating facts about the offence or the defendant’s part in it, which the prosecutor must negative beyond reasonable doubt, from other mitigating facts, which the defendant must prove on the balance of probabilities.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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