The appellant, Kristopher Boyle, was found guilty following a jury trial in the District Court on two charges of kidnapping, one of assault with intent to injure and two of assaulting a female. He was convicted and sentenced by the trial Judge, Judge Gibson, to a total term of four years’ imprisonment.[1] On his behalf Mr Corby submits the Judge erred primarily in adopting an unduly harsh starting point.

The facts

[1]R v Boyle [2016] NZDC 25028.

The facts bear some brief recitation. At the time of the offending Mr Boyle was 34 years of age. The complainant, the victim of his offending, was a 14‑year‑old girl. The pair were in a sexual relationship of some six months’ duration. Methamphetamine use was a feature. The complainant came from a dysfunctional family background. While Mr Boyle was unaware of her age at the time the offending commenced, he learned of it later.
The kidnapping events occurred, as Mr Corby emphasises, within a compressed period of time and were part of one connected factual series. One evening in March 2015 the complainant was attending a party at her mother’s house. Mr Boyle asked her to leave but she declined. She would not accompany him on the way home. There was an altercation. He overcame her resistance, placed her in his car and drove away. As Ms Ewing submits, there was evidence at trial that the complainant twice asked those at the party to call the police.
The second kidnapping occurred when the complainant escaped from Mr Boyle’s car. She attracted the attention of a road worker. He was satisfied that she was scared and needed help immediately. A third party came to her aid and drove off with her, intending to take her to a safe place or to the police. Mr Boyle followed and intercepted the other vehicle. He confronted the driver, whom he threatened to kill, and then dragged the complainant out of the car by the hair and into his car. Once in the car, Mr Boyle punched the complainant in the head on a number of occasions. This incident gave rise to the charge of assault with intent to injure.
Additionally, Mr Boyle assaulted the complainant twice in early 2015. On the first occasion he punched her in the stomach following an argument. The second occasion, he punched her in the leg giving her a dead leg because she was allegedly screaming.

Sentencing

Judge Gibson used the kidnapping charge as the index offence for sentencing purposes. In fixing the starting point he considered a number of authorities including this Court’s decision in Heke…

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 Boyle v R

Details

AGLC: Boyle v R [2017] NZCA 173
Case: [2017] NZCA 173
Decision Date: 9 May 2017

CaseChat Overview and Summary

The appellant, Kristopher Boyle, appealed against his conviction and sentence in the Court of Appeal of New Zealand. Boyle was found guilty of two counts of kidnapping, one count of assault with intent to injure, and two counts of assaulting a female. The District Court had sentenced him to a total of four years' imprisonment. The primary contention of the appellant was that the trial judge had adopted an unduly harsh starting point for sentencing.

The legal issues in this case centred on whether the trial judge had correctly determined the starting point for sentencing, the appropriate increases for totality and previous offending, and whether the sentence was manifestly excessive. The appeal hinged on whether the trial judge had erred in his application of sentencing principles and authorities, particularly in relation to the starting point for the kidnapping charges.

The Court of Appeal held that the trial judge was entitled to set a three-year and four-month starting point for the kidnapping charges, considering the aggravating factors such as the complainant's age and Boyle's use of violence and threatening behaviour. The court found that the trial judge's decision to apply cumulative uplifts for totality and previous offending was also appropriate. The increases for threatening to kill and the two earlier assaults were justified. The Court of Appeal concluded that the sentence was not manifestly excessive and affirmed that there was no error in the judge's approach.

The Court of Appeal dismissed the appeal, upholding the original conviction and sentence imposed by the District Court.

Orders