Bell v Police - [2016] NZHC 1715

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000011 [2016] NZHC 1715

BETWEEN
ZANE LEVI BELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 July 2016

Appearances:

A Dawson for Appellant
L C Preston for Crown

Judgment:

27 July 2016

JUDGMENT OF DUNNINGHAM J

[1] Mr Bell appeals his sentence of two years five months’ imprisonment imposed in respect of various charges.1 Four of the charges arose out of the events which occurred on one night. These are:

(a) assault;

(b) assault with intent to injure; (c) burglary; and
(d) robbery.

1 R v Bell [2016] NZDC 10091.

BELL v NEW ZEALAND POLICE [2016] NZHC 1715 [27 July 2016]

[2] Mr Bell was also charged with operating a motor vehicle causing sustained loss of traction, which occurred on a separate occasion.

Background

[3] The events which triggered the commission of the first four offences with which the appellant was charged, began with a damaged seat belt. In November 2014, the victim and his partner borrowed a Toyota motor vehicle from the sister of a man they knew. That man is a school friend of the appellant. During the time the vehicle was being used by the victim and his partner, their dog damaged the seat belt in the vehicle. As a result, $100 was paid to the sister. A dispute arose over what, if any, further money should be paid.

[4] On 6 January 2015 the appellant and his friend had been to a funeral in Dunedin. As they drove back to Lawrence, the issue of the money paid to the friend’s sister was discussed. Both had been drinking. The friend’s girlfriend was also in the car.

Common Assault

[5] On arriving at Lawrence, the appellant drove to the victim’s address. He went to the victim’s property and banged on the door. When the victim opened the door, he said “You owe my sister in law money” and punched the victim.

Burglary and assault with intent to injure

[6] The appellant then chased the victim into the house where he continued to say that money was owed. In the kitchen the appellant threw two punches at the victim who blocked one, and the other missed. He then kicked the victim twice to the forearm area and threw four or five further punches, one hitting the victim’s jaw.

[7] The appellant said to the victim, “right then, we’ll go to the ATM machine and you’ll give me $200.” In the lounge the victim obtained an ATM card from his pregnant partner’s purse and he left the house with the appellant. They walked to the car where the appellant said to the victim, “you best have $200 there”.

Robbery

[8] The appellant then drove the victim to the local ATM in Lawrence where he accompanied the victim up to the ATM and stood beside him. There, the victim withdrew and handed over $200. On returning to the car the money was given to the friend’s girlfriend who later gave it to…

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 Bell v Police

Details

AGLC: Bell v Police [2016] NZHC 1715
Case: [2016] NZHC 1715
Decision Date: 27 July 2016

CaseChat Overview and Summary

Zane Levi Bell appeals his sentence of two years and five months' imprisonment imposed in respect of various charges including assault, assault with intent to injure, burglary, robbery and operating a motor vehicle causing sustained loss of traction. The events leading up to the commission of the first four offences arose out of a dispute over money following damage to a car's seat belt. Bell and his friend went to the victim's address, where Bell assaulted the victim, chased him into his home, and threatened him into accompanying Bell to an ATM where he withdrew $200. The victim's pregnant partner witnessed the assault and was left traumatised by the experience. In the District Court, Bell's starting point was set at three years and three months' imprisonment, reduced by 25 per cent for his guilty plea and degree of remorse. Bell's appeal against his sentence was dismissed by the High Court. Bell argued that the starting point was too high, but the Court found that the starting point of three years and three months was within range. Bell also argued that insufficient credit was afforded to his personal circumstances, but the Court found that the Judge was entitled to place little weight on many of the mitigating factors submitted by counsel, and that the extent of discount afforded for mitigating factors is a matter of judicial discretion. The Court did not need to address the third ground of appeal, which was whether home detention should have been imposed. The appeal was dismissed.

Orders