Boyland v Police - [2015] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-47 [2015] NZHC 2463

BETWEEN
FLOYD BOYLAND

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 October 2015

Counsel:

J Griffiths for Appellant
S C Carter and R Georgiou for Respondent

Judgment:

8 October 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1] Mr Boyland appeals a final sentence of two years and nine months’ imprisonment imposed in relation to twenty-one offences to which he had pleaded guilty. The Judge took a starting point of three years’ imprisonment. This was expressed to be for the lead offence of threatening to kill, but in fact there was no uplift for any of the other offending to reflect totality. The three years therefore covers Mr Boyland’s culpability for all the charges. There was then a six month uplift for Mr Boyland’s past offending record. Nine months was deducted to reflect
the guilty plea and the end sentence was produced.1

[2] The appeal focused on the correctness of the three year starting point for threatening to kill. However, for the reason already given, the analysis must be on
whether the three years starting point was excessive for the totality of the offending.

1 NZ Police v Boyland [2015] NZDC 12117.

BOYLAND v NZ POLICE [2015] NZHC 2463 [8 October 2015]

The offending

[3] The offences are best detailed in chart form:

Threatening to kill

2 years 9 months’ imprisonment

Unlawfully carry/possess firearm

2 years’ imprisonment (concurrent)

Possession of an offensive weapon

1 year imprisonment (concurrent)

Unlawfully carry/possess firearm

2 years’ imprisonment (concurrent)

Possession of knife in public place

1 month imprisonment (concurrent)

Wilful damage

1 month imprisonment (concurrent)

Cultivate cannabis

6 months’ imprisonment (concurrent)

Procure/possess cannabis

1 month imprisonment (concurrent)

Breach of the Medicines Act

1981

Convicted and discharged

Theft (under $500)

1 month imprisonment (concurrent)

Theft (under $500)

1 month imprisonment (concurrent)

Theft (under $500) (x5)

1 month imprisonment (concurrent)

Receives property (under

$500)

1 month imprisonment (concurrent)

Theft (under $500) (x2)

1 month imprisonment (concurrent)

Receives property (under

$500) (x2)

1 month imprisonment (concurrent)

[4] The primary incident was an occasion when an angry Mr Boyland called in at his mother’s house to retrieve some clothing. Whilst inside, anger seemed to get the better of him and he punched a hole in a wall (wilful damage). Mr Boyland’s mother came to investigate, at which time Mr Boyland pointed a loaded shot gun at her face and said:

I going to shoot someone, or I could shoot you. (Threatening to kill)

He then left.

[5] The Police were called and located Mr Boyland driving. A search of the vehicle revealed the shotgun still loaded, together with two further rounds of ammunition and two knives (possession of firearm, and possession of knives). There is also a charge of carrying a firearm, which relates to Mr Boyland’s possession of the same shotgun earlier in the day.

[6] Looking at the other offences, the number of theft charges reflect Mr Boyland’s propensity to fill his…

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 Boyland v Police

Details

AGLC: Boyland v Police [2015] NZHC 2463
Case: [2015] NZHC 2463
Decision Date: 8 October 2015

CaseChat Overview and Summary

Floyd Boyland appeals the sentence of two years and nine months' imprisonment imposed by the sentencing Judge following his guilty pleas to twenty-one offences. The appeal specifically targets the three-year starting point for the offence of threatening to kill, however, the Court must consider whether the starting point was excessive in relation to the totality of the offending. The offences include threatening to kill, possession of a firearm, possession of offensive weapons, wilful damage, theft, and cultivating cannabis. The Court highlights that the threatening to kill incident, where Boyland pointed a loaded shotgun at his mother's face, was serious, and when considered alongside the other offences, a three-year starting point was not excessive.

The Court found that the six-month uplift for Boyland's extensive criminal history, which includes 11 previous convictions for violence or possession of weapons, was appropriate. However, the sentencing Judge had misunderstood the timing of Boyland's guilty plea, leading to an incorrect calculation of the guilty plea discount. The Court concludes that the interests of justice and fairness support an adjustment to the sentence, given that the error did not result in a manifestly excessive sentence.

The appeal is allowed, and the new sentence for the threatening to kill charge is two years and seven months' imprisonment. All other sentences remain unchanged.

Orders