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Buchanan v The Queen

Buchanan v The Queen

Case [2019] NZHC 2283 11 September 2019

Appeal

Sentencing

Aggravated & Exemplary Damages

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-19

[2019] NZHC 2283

BETWEEN
GREGORY ROSS BUCHANAN

Applicant

AND

THE QUEEN

Respondent

Hearing: 11 September 2019

Appearances:

S J Grey for the Appellant

K L Kensington for Respondent

Judgment:

11 September 2019

JUDGMENT OF COOKE J

[1] On 7 June 2019 Mr Buchanan was sentenced before Judge Hikaka in the District Court at New Plymouth to five years’ imprisonment after pleading guilty to one representative charge of blackmail.1

[2] Mr Buchanan appeals his sentence on the grounds that the sentencing decision contained factual errors, that the true nature of the offending was not recognised in the sentence imposed, that the starting point was not in line with the authorities concerning protest action, and that inadequate discount was given for Mr Buchanan’s age and remorse.

[3] The Crown submits there was no error in the sentence and the sentencing Judge was entitled to proceed on the summary of facts before him. It says the starting point was justified and discounts for mitigating factors appropriate.

1 R v Buchanan [2019] NZDC 10939. Crimes Act 1961, ss 237(1) and 238, maximum penalty 14 years’ imprisonment.

BUCHANAN v R [2019] NZHC 2283 [11 September 2019]

Factual background

[4] The Department of Conservation (the Department) is responsible for conserving New Zealand’s natural and historical heritage. One of the Department’s key programmes is eradicating invasive species such as rats, stoats and possums, which pose a threat to native wildlife. Part of this programme involves use of the biodegradable pesticide known as 1080. 1080 is highly effective for the control of pests and controlling the spread of bovine tuberculosis. But the Department’s use of 1080 has caused controversy. There are a number of active protest groups and organisations against the use of 1080. Mr Buchanan is one such protestor.

[5] On 25 September 2017 the Department’s New Plymouth office received a letter from Mr Buchanan. The letter did not name an author but purported to be from “The Hunters of New Zealand Taranaki”. The letter stated that the Hunters of New Zealand had purchased 25 top breeding hinds and six top Sika stags and released them into the wild between Waverley and Mokau. The letter threatened to continue to release deer if the Department did not stop using 1080.

[6] The Department confirmed the presence of Sika deer in the Taramoukou Conservation Area in October 2017. Sika deer are notoriously difficult to hunt and eradicate from forests once they become established. There was reportedly no prior Sika deer population in the Taramoukou Conservation Area or wider Taranaki conservation lands administered by the Department. The Department commenced an eradication operation and were successful in culling most of the deer by late December 2017.

[7] The Department received a second letter from Mr Buchanan on 4 December 2017. Again, the letter was signed off from “The New Zealand Hunters”. The letter warned the Department that the war on 1080 was…

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 Buchanan v The Queen

Details

AGLC: Buchanan v The Queen [2019] NZHC 2283
Case: [2019] NZHC 2283
Decision Date: 11 September 2019

CaseChat Overview and Summary

Buchanan appeals his sentence on the grounds that the sentencing decision contained factual errors, that the true nature of the offending was not recognised in the sentence imposed, that the starting point was not in line with the authorities concerning protest action, and that inadequate discount was given for Buchanan’s age and remorse. The Crown submits there was no error in the sentence and the sentencing Judge was entitled to proceed on the summary of facts before him. It says the starting point was justified and discounts for mitigating factors appropriate. The High Court found that the sentencing Judge made an adverse factual finding on a matter that was disputed. It was not appropriate for the Judge to do this. The High Court also found that the starting point of seven years’ imprisonment adopted by the Judge was too high. It found that an appropriate starting point was four years’ imprisonment. Finally, the High Court found that insufficient discounts were imposed for remorse and Buchanan’s age. The appeal is allowed and a sentence of two years eight months’ imprisonment is substituted for the sentence of five years’ imprisonment imposed by the District Court.

Orders