Boyd v R

Case [2015] NZHC 822 24 April 2015

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000006 [2015] NZHC 822

BETWEEN
JOHN NATHAN BOYD

Appellant

AND

THE QUEEN Respondent

Hearing: 31 March 2015

Appearances:

S A Saunderson-Warner for Appellant
M J Grills for the Crown

Judgment:

24 April 2015

JUDGMENT OF GENDALL J

Introduction

[1] This is an appeal against sentence.

[2] On 25 February 2015, Judge M A Crosbie in the District Court at Dunedin sentenced the appellant to two years three months’ imprisonment on one charge of being an accessory after the fact to an assault with intent to rob.1 His Honour in his decision also recommended the appellant continue with one-on-one psychological counselling which he had commenced while on parole.2

[3] The appellant now appeals on the basis that the sentence imposed is manifestly excessive. Counsel for the appellant submits that the starting point adopted by Judge Crosbie of two years four months was too high, and, further, that
the uplifts imposed were excessive and should be reduced to be:

1 R v Boyd [2015] NZDC 2798.
2 At [18].

BOYD v THE QUEEN [2015] NZHC 822 [24 April 2015]

(a) proportionate to the starting point; and

(b)offset to take account of time spent subject to recall (for breach of parole).

Jurisdiction

[4] Mr Boyd is able to appeal this sentence imposed as of right.3 As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.4 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).5

Submissions

Appellant

[5] Counsel for the appellant accepts that there is no tariff for offending involving being an accessory after the fact, but cites numerous precedents in support of the submission that Judge Crosbie’s starting point was excessive.

[6] Ms Saunderson-Warner for the appellant relies first upon R v Duff. 6 There, the Court noted a continuum for accessory situations ranging from cases involving the destruction of evidence (so as to thwart a successful prosecution) to cases where an isolated one-off incident (in which some form of assistance is given to a fugitive) occurred. Ms Saunderson-Warner submits that the offending in R v Duff is more serious than the appellant’s offending here and yet in that case, Lang J adopted a
starting point of 18 months.

3      Criminal Procedure Act 2011, s 244.
4      Sections 247 and 250.
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6      R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010 at [11] per Lang J.

[7] In this Court in R v Boskell, I adopted a starting point of ten months for the defendant who was charged with being an accessory after the…

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 Boyd v R

Details

AGLC: Boyd v R [2015] NZHC 822
Case: [2015] NZHC 822
Decision Date: 24 April 2015

CaseChat Overview and Summary

John Nathan Boyd appeals his sentence of two years three months’ imprisonment, imposed by Judge Crosbie in the District Court at Dunedin. Boyd was convicted of being an accessory after the fact to an assault with intent to rob. Boyd’s counsel contends that the starting point and uplifts adopted by Judge Crosbie were excessive. The Crown submits that the sentence imposed was not manifestly excessive. The High Court found that the starting point adopted by Judge Crosbie was too high and the uplifts were disproportionate. The end sentence of 15 months’ imprisonment was substituted for the original sentence of two years three months’ imprisonment.

The High Court noted that there is no tariff for being an accessory after the fact to an offence. Boyd’s counsel submitted that the starting point adopted by Judge Crosbie was too high, and the uplifts were disproportionate. The Court found that a starting point of 14 months was appropriate. The uplifts were reduced to ensure proportionality with the starting point. The uplift for offending while on parole was retained, as the appellant had not objected to it at sentencing. The Court found that the uplift for offending while on parole did not subject the appellant to double punishment. A discount of 25 percent was applied, reflecting the appellant’s guilty plea and willingness to participate in restorative justice. The end sentence of 15 months’ imprisonment was substituted for the original sentence of two years three months’ imprisonment.

Orders