Boote v The Queen - [2014] NZCA 125

IN THE COURT OF APPEAL OF NEW ZEALAND

CA707/2013
[2014] NZCA 125

BETWEEN	SHANE IAN BOOTE Appellant
AND	THE QUEEN Respondent

Hearing:	5 March 2014
Court:	Miller, Goddard and Clifford JJ
Counsel:	PHB Hall QC for Appellant M E Ball for Respondent
Judgment:	3 April 2014 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

The appellant was tried before a Judge and jury in the Nelson District Court and found guilty on two charges: one count of wounding with intent to cause grievous bodily harm; and one count of assault with intent to injure. Two separate victims were involved.
Following trial, Judge Zohrab sentenced the appellant to four and a half years’ imprisonment.[1] He now appeals his sentence on the basis that it is manifestly excessive on three grounds:
(i)the starting point was too high, when compared with other cases of serial and serious violence causing significant injuries,[2] and no reduction was made to reflect elements of provocation or self-defence;
(ii)the uplift applied from the starting point was excessive; and
(iii)the Judge failed to recognise steps the appellant had taken to address his alcohol dependence, impulse control and anger management.
[1]R v Boote DC Nelson CRI-2011-009-13136, 2 October 2013 [sentencing decision].
[2]R v Hall [2012] NZCA 518; R v Taueki [2005] 3 NZLR 372 (CA).
On behalf of the appellant, Mr Hall QC argued that an end sentence in the range of two to three years would have been appropriate to reflect accurately the appellant’s culpability and sentences imposed for like offending.

Facts

The facts of the offending, which occurred at 2.00 am on 8 October 2011, were recorded by the Judge as follows:[3]
You were engaged in what the Crown characterise as a minor push and shove with the victim, William Conlon, whilst queuing for a drink in the bar. He has pulled your hair. That has led to this minor push and shove, and then, without warning, you have picked up a full bottle of beer from the bar and struck the victim in the face with it. I accept it was an impulsive act on your part but the bottle smashed, resulting in an injury which required multiple stitches to his face. When his friend tried to restrain you, you bit the friend’s thumb. The bite was hard enough to break the skin and cause his thumbnail to blacken and eventually fall off.
You were not apprehended that night. When you first spoke to the police, by way of a telephone discussion with Detective Nally, you all but admitted being involved but, subsequent to that, you sought to distance yourself from what had happened. You had a full interview with Detective Falloon. You led him to believe that you wanted to be honest and upfront about what had happened, and then lied for an hour and a half in the course of your DVD interview.
You also gave evidence before…

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 Boote v The Queen

Details

AGLC: Boote v The Queen [2014] NZCA 125
Case: [2014] NZCA 125
Decision Date: 3 April 2014 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Shane Ian Boote against his conviction and sentence for two charges: wounding with intent to cause grievous bodily harm and assault with intent to injure. The appeal focused on the sentence imposed by the Nelson District Court, which was four and a half years’ imprisonment. Boote contended that the sentence was manifestly excessive on three grounds: the starting point was too high, the uplift applied from the starting point was excessive, and the Judge failed to recognise steps Boote had taken to address his alcohol dependence, impulse control, and anger management.

The court considered the arguments made by the appellant's counsel, PHB Hall QC, that the sentence imposed was too severe in comparison to other cases of serial and serious violence causing significant injuries. Counsel also argued that no reduction was made to reflect elements of provocation or self-defence, the uplift applied was excessive, and the Judge failed to recognise the steps Boote had taken to address his alcohol dependence, impulse control, and anger management.

The court examined the facts of the offending, which occurred at 2:00 am on 8 October 2011, and involved Boote attacking two victims in a bar. Boote picked up a full bottle of beer and struck one victim in the face, causing an injury that required multiple stitches. When the victim's friend attempted to restrain Boote, he bit the friend's thumb, breaking the skin and causing the thumbnail to blacken and eventually fall off. The court also considered the various reports and submissions made before the sentencing Judge, including an alcohol and drug use assessment, a pre-sentence report, a psychological report, and a number of references.

The Court of Appeal found that the starting point for the sentence was appropriate, and the uplifts and discounts applied were also reasonable. The court concluded that the sentence imposed by the Nelson District Court accurately reflected the totality of Boote's offending, and dismissed the appeal. The final orders were that the appeal is dismissed.

Orders