Banfield v The Queen

[2005] NZCA 188

IN THE COURT OF APPEAL OF NEW ZEALAND

CA22/05

THE QUEEN

v

GEORGE HAURANGI BANFIELD

Court:Anderson  P, Glazebrook and O'Regan JJ

Counsel:N Deobhakta for Appellant

A J Mills for Crown

Judgment:27 July 2005 

(On the papers)

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by O’Regan J)

Introduction   

[1]        The appellant was sentenced to a term of imprisonment for two years two months after he was found guilty of one count of aggravated robbery, one count of kidnapping and one count of assault.  He now appeals against that sentence on medical and humanitarian grounds. 

[2]        This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Factual background

[3]        The appellant was sentenced along with a co-offender Mr Larsen.  The sentencing Judge, Judge Burnett described the factual background in her sentencing remarks as follows:

[2]       In respect of these matters, the background to the offending was that a dispute had arisen between Mr Larsen and the victim Mr Claus.  Mr Claus had purchased cannabis from Mr Larsen and there was a debt owing as a result of that sale to Mr Larsen.  It also seemed as a result of the defence case that it was put as a background fact that there was a debt owing in respect of the purchase of a motor vehicle from Mr Larsen by Mr Claus.

[3]       In any event as the situation unfolded in order to recover the debt Mr Larsen contacted Mr Banfield and another person and together Mr Banfield, that other associate, and Mr Larsen, assaulted Mr Claus.  Mr Claus was then placed in the boot of Mr Banfield’s motor vehicle, driven a short distance back to Mr Claus’s home and Mr Banfield and the associate entered Mr Claus’s home, searched his home and took a TV from the home and that television was in payment of Mr Banfield’s contribution to the events.  The television was not recovered and a dog to the value of $250.00 was also taken.

Sentencing remarks

[4]        The Judge noted that aggravated robbery was the lead offence.  She identified a number of aggravating features, including the youth and vulnerability of the victim, the use of threats and intimidation and the concerted action of three offenders (the third offender was not identified) against the sole victim.  She noted the size disparity between Mr Banfield and the victim.

[5]        The Judge noted that counsel for Mr Banfield had referred to his health issues which had been traversed in the pre-sentence report, and had provided a note of a medical appointment for 2 February. 

[6]        The Judge referred to the decision of this Court in R v Mako [2000] 2 NZLR 170. She took a starting point of two and a half years imprisonment in respect of both the aggravated robbery and kidnapping charges, and allowed a discount of four months for mitigating features. As the sentence was over two years, home detention was not an available option. She imposed a concurrent term of eight months imprisonment for the assault charge and order that reparation of $250 be paid.

Notice of appeal

[7]        The notice of appeal says that the grounds of appeal are as follows:

(a)       Medical conditions that make imprisonment unduly harsh.

(b)In the interests of justice that a non-custodial sentence should be substituted.

[8]        Counsel for Mr Banfield filed with the notice of appeal a very large bundle of what appears to be medical records.  However there was no reference to these in the notice of appeal and no submissions were made in respect of them.

Submissions

[9]        The entire submissions made on behalf of Mr Banfield read as follows:

[1]       Mr Banfield the Appellant has a medical condition that can be best described as a heart related problem, which requires regular medical oversight. 

[2]       It is submitted that on humanitarian grounds the most appropriate sentence should be a community based sentence of community work, being light duties in substitute [sic] for the term of imprisonment.

[10]      The Crown filed more comprehensive submissions in opposition to the appeal.  Crown counsel pointed out that the pre-sentence report records a discussion between the probation officer and the appellant’s doctor about his medical condition.  It appears he has severe heart problems.  However the doctor said that, while the appellant may require another operation some time in the future, his condition is regulated by medication and, provided he does not engage in heavy work, there are no great concerns for his health.  The pre-sentence report summary concluded

While his health is likely to be permanently poor this is not an impediment to any sentencing option.

[11]      Crown counsel also pointed out that the Judge had specifically referred to these health issues in her sentencing remarks.

[12]      Crown counsel submitted that, as no further evidence regarding the appellant’s medical condition had been placed before this Court, the Court was required to rely on the pre-sentence report.  She referred to other cases such as R v Verschaffelt [2002] 3 NZLR 772 and R v Bernard [1997] 1 Cr App R(S) 135.  She submitted that as there is no evidence in the present case to substantiate the suggestion that imprisonment would adversely affect the appellant’s medical condition, there was no basis on which this Court should interfere with the sentence imposed in the District Court.

Discussion

[13]      We accept the submissions of Crown counsel.  As no substantive submissions have been made in support of the appeal by counsel for the appellant, and no medical evidence different from that which was before the District Court has been provided, there is no basis for us to interfere with the sentence imposed in the District Court.

Result

[14]      We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington