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Beaven v The Queen

Beaven v The Queen

Case [2018] NZHC 2401 12 September 2018

Rehabilitative Considerations

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-454-9

[2018] NZHC 2401

BETWEEN
TRACEY MAREE BEAVEN

Appellant

AND

THE QUEEN

Respondent

Hearing: 11 September 2018

Appearances:

G H Allan for Appellant

J J Harvey and E R Pairman for Respondent

Judgment:

12 September 2018

JUDGMENT OF GRICE J

(Appeal against sentence)

[1] Ms Beaven was sentenced to 27 months (two years and three months) imprisonment on one charge of aggravated robbery1 in the District Court on 25 May 2018.2

[2] Ms Beaven appeals her sentence on the grounds it was manifestly excessive for a number of reasons. They can be summarised as follows:

(a)The starting point was too high as the Judge wrongfully regarded Ms Beaven as “wilfully blind” and the discount for Ms Beaven’s lesser role was insufficient;

1 Crimes Act, ss 66(1) and 235(b).
2 R v Beaven [2018] NZDC 10938.

BEAVEN v R [2018] NZHC 2401 [12 September 2018]

(b)The Judge gave insufficient weight to Ms Beavan’s mitigating factors, specifically those relating to her family; and

(c)Home detention was a suitable sentence.

[3]The Crown say:

(a)The starting point of four years imprisonment adopted by the Judge was well within range for the offending. It was also open to the Judge to find Ms Beaven was wilfully blind;

(b)A further reduction was available to the Judge for the family situation of Ms Beaven in light of her responsibilities to her children and their dependence on her; and

(c)If the appeal is allowed and Ms Beaven’s sentence is reduced a new sentence at a level at which home detention is an available option, the Crown do not oppose it. This is as long as the risks Ms Beaven poses can be dealt with appropriately.

[4] There is also further evidence which is sought to be adduced in the appeal which was not before the sentencing Judge.

The offending

[5] On the afternoon of 15 July 2017, two young people known to Ms Beaven went to her home. They asked Ms Beaven if they could use her car, to which she said no. She offered to drive them, however, as she thought they were going to take her car anyway. They did not have drivers’ licences.

[6] She drove them from Palmerston North toward Levin. They picked up two other young people on the way. Ms Beaven was told to park outside a store in Levin while the young people went into a store to buy disguises to wear during a robbery. Ms Beaven did not know why they went into the shop.

[7] Ms Beaven was directed by the youths to drive and park near another store. One of the young people got out of the car, having been given $20.00 by one of the others, to go and buy a container to use during the robbery. The young person came back to the car after buying a small container, and was told to go back and get…

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 Beaven v The Queen

Details

AGLC: Beaven v The Queen [2018] NZHC 2401
Case: [2018] NZHC 2401
Decision Date: 12 September 2018

CaseChat Overview and Summary

Tracey Maree Beaven appeals her 27-month imprisonment sentence for aggravated robbery. The appeal was heard by Grice J, who considered whether the sentence was manifestly excessive. The grounds for appeal were that the starting point was too high, that insufficient weight was given to mitigating factors, and that home detention was a suitable sentence. The Crown argued that the starting point was within range, that the mitigating factors were considered, and that if the appeal was allowed, home detention was an appropriate alternative. The court considered the evidence of the circumstances of the offence, the sentencing indication, and the sentencing. The court found that the starting point was appropriate, the discount for Ms Beaven’s lesser role was appropriate, and a further discount was appropriate for the impact on Ms Beaven’s family. The final sentence was 11 months home detention, reduced by five months for time already served, leaving a final sentence of six months home detention. The appeal was allowed, and the sentence of imprisonment was quashed and substituted with a sentence of home detention.

Orders