Boyle v R

[2017] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2016
[2017] NZCA 173

BETWEEN	KRISTOPHER PHILLIP BOYLE Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	J J Corby for Appellant A Ewing for Respondent
Judgment:	9 May 2017

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Background

1. 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.

1. 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. 

2. 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. 

3. 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. 

4. 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

1. 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 v R.[2]He was satisfied that a starting point of three years and four months’ imprisonment was appropriate on the kidnapping charge while accepting that it was at the lower end of the kidnapping factual spectrum.  The Judge identified two particularly aggravating features.  One was the complainant’s age.  The other was Mr Boyle’s use of violence and threatening behaviour. 

   [2]Heke v R [2016] NZCA 38.

2. The Judge applied two cumulative uplifts to this three years and four months’ starting point.  One was six months’ imprisonment for totality.  The other was two months’ imprisonment for the previous offending.  He made no allowance for personal or mitigating factors.  Indeed, that was precluded by Mr Boyle’s previous criminal history.  As Ms Ewing points out, it would have been open to the Judge to apply a further uplift for Mr Boyle’s offending while on bail but he did not do so. 

Decision

1. On appeal Mr Corby relies primarily on this Court’s decision in Heke.[3]  By comparison, he says that a starting point of some two years and four months should have been adopted.  However, as Ms Ewing notes, kidnapping is an offence that can occur in an infinite variety of circumstances.[4]  The Judge was entitled to give weight to the two aggravating features he identified.  Despite Mr Corby’s argument that there was an element of an intention to protect in the offending, we are satisfied that it was open to the Judge to adopt a three-year starting point.  It was well within the available range for serious offending, which carries a maximum sentence of 14 years’ imprisonment.[5]  Additionally, we see no error in the increases applied for the totality of the offending, including threatening to kill, which in itself is a serious offence, and the two earlier assaults on the complainant.

   [3]Above n 2.

   [4]See R v Wharton (2003) 20 CRNZ 109 (CA) at [11].

   [5]Crimes Act 1961, s 209.

2. In all, we are not satisfied that the Judge erred.  The sentence was not manifestly excessive. 

Result

1. Despite Mr Corby’s arguments to the contrary, we are satisfied that the appeal should be dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent