Bendall v The Queen - [2011] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/2011
[2011] NZCA 594

BETWEEN HELENA LEIGH BENDALL
Appellant

AND THE QUEEN
Respondent

Hearing: 7 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: W T Nabney for Appellant
K Raftery and M Davie for Respondent

Judgment: 29 November 2011 at 11.30 am

JUDGMENT OF THE COURT

A Extension of time to appeal is granted.

B The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

Helena Bendall appeals against sentences totalling 25 months imprisonment imposed by Judge Ingram.[1] She seeks extension of time to appeal which is not opposed by the Crown and is granted.
[1] R v Bendall DC Tauranga CRI-2009-463-0050, 22 June 2011.
At a trial before Judge Ingram and a jury the appellant was found guilty and a jury of injuring with intent to injure, arson and attempting to pervert the course of justice. She had previously pleaded guilty to a charge of common assault.
The sentences of 25 months imprisonment comprised the following:
(a)Injuring with intent - 16 months imprisonment.
(b)Common assault - one month imprisonment, concurrent.
(c)Arson - one year imprisonment, concurrent.
(d)Attempting to pervert the course of justice - nine months imprisonment cumulative on the sentence of 16 months imprisonment.
The focus of the appeal is the sentence of 16 months imprisonment on the charge of injuring with intent to injure. The appellant submits this sentence is manifestly excessive given her secondary role in the offending. No issue is taken with the length of the other sentences imposed, nor with the sentence for attempting to pervert the course of justice being made cumulative on the sentence for injuring with intent.

Factual background

The appellant had previously been in a relationship with the victim. On 26 September 2008 she went to the victim’s house with her new partner, Mr O’Brien, to see if he would look after her son. He refused and asked her to leave. She slapped him. Mr O’Brien then entered the house. In the presence of the appellant he damaged property, threatened the victim with a knife, made the victim kneel on the floor and bark like a dog, and forced him to sign away his car. The car was later taken and burnt after the appellant had made unsuccessful attempts to sell it. Some weeks later, the appellant approached the victim in the street and asked him to go to the police station and have the charges against her dropped. He declined and was abused by the appellant.
Mr O’Brien pleaded guilty at an early stage to his part in the offending. He was charged with the more serious crime of aggravated robbery and was sentenced to three years and three months imprisonment.[2] Concurrent sentences of 18 months imprisonment on a charge of injuring with intent to injure and one year for arson were also imposed.

The appellant

[2] New Zealand Police v O’Brien DC Tauranga CRI-2008-070-7068, 4 November 2008.

The appellant is 32 years of…

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 Bendall v The Queen

Details

AGLC: Bendall v The Queen [2011] NZCA 594
Case: [2011] NZCA 594
Decision Date: 29 November 2011

CaseChat Overview and Summary

Helena Leigh Bendall sought to appeal against sentences totalling 25 months imprisonment imposed by Judge Ingram, with a particular focus on the 16 months imprisonment for injuring with intent to injure. The Crown did not oppose the extension of time to appeal, which was granted. The appellant, who had no previous convictions, was found guilty of injuring with intent, arson, attempting to pervert the course of justice, and pleaded guilty to common assault. The appellant's new partner, Mr O'Brien, was also involved in the offending and had pleaded guilty to aggravated robbery, receiving a sentence of three years and three months imprisonment, with concurrent sentences for injuring with intent and arson.

The appellant submitted that her role in the offending was secondary to Mr O'Brien and the sentence was therefore manifestly excessive. The Crown argued that the sentence was not manifestly excessive and that home detention would not be an appropriate sentence given the seriousness of the offending. The Court found that the starting point of 18 months imprisonment for the injuring with intent charge was well available, given the appellant's role in the violent offending as found by the Judge. The sentence of 16 months imprisonment imposed on this charge could not be criticised. The Court agreed with the Crown that home detention would not have been an appropriate sentence given the seriousness of the appellant's offending, even had the end sentence been two years or less. The sentence of 25 months imprisonment imposed on the appellant was not manifestly excessive and the appeal was dismissed.

The Court noted that the Judge, who presided over the trial and had the benefit of the evidence, was well placed to make findings as to the role the appellant played, in accordance with s 24(1) of the Sentencing Act 2002. The Judge made clear findings as to the appellant's role in the violent offending, finding that she was the planner and the organiser. The Court found that the Judge recognised a significant distinction between the culpability of Mr O'Brien and that of the appellant in the violent offending, and that the respective culpability of each in relation to the violent offending was distinctly and appropriately recognised.

Orders