Bullen v R - [2017] NZCA 615

IN THE COURT OF APPEAL OF NEW ZEALAND

CA47/2017
[2017] NZCA 615

BETWEEN	DENNIS EDWARD BULLEN Appellant
AND	THE QUEEN Respondent

CA385/2017
BETWEEN	LYNNE AMANDA JACKSON Appellant
AND	THE QUEEN Respondent

Hearing:	14 November 2017
Court:	Brown, Courtney and Toogood JJ
Counsel:	R M Gould for Appellant Bullen A J D Bamford for Appellant Jackson M H Cooke for Respondent
Judgment:	19 December 2017 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the notice of appeal in CA385/2017 is granted.
BThe application to adduce further evidence on appeal in CA47/2017 is granted.
CThe appeals against sentence are allowed.
DThe sentence of five years and nine months’ imprisonment imposed on Dennis Edward Bullen for aggravated robbery is quashed and a sentence of four years and two months’ imprisonment substituted.
EThe sentence of five years and six months’ imprisonment imposed on Lynne Amanda Jackson for aggravated robbery is quashed and a sentence of four years and three months’ imprisonment substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

The appellants, Dennis Bullen and Lynne Jackson, were convicted following a jury trial in the District Court at Blenheim on charges of aggravated robbery and aggravated injuring.[1] At sentencing Judge Zohrab took the same starting point of five years and nine months’ imprisonment for both appellants.[2] Seeing little reason to move from this starting point, the Judge sentenced Mr Bullen to five years and nine months’ imprisonment and Ms Jackson to five years and six months’ imprisonment, the modest difference attributable to Ms Jackson’s time spent on electronically monitored bail.[3] Mr Bullen was also ordered to pay $1000 emotional harm reparation.
[1]As well as some minor drugs charges.
[2]R v Jackson [2017] NZDC 185.
[3]Concurrent sentences of one years’ imprisonment for the aggravated injuring charge and one months’ imprisonment for the drugs charges were also imposed on Mr Bullen and Ms Jackson.
Mr Bullen and Ms Jackson appeal their sentences. Both say that the starting point was too high, resulting in manifestly excessive sentences. In addition:
(a)Ms Jackson says that the Judge fixed the starting point for her in reliance on factual findings that were not available on the evidence, and did not take into account the limited role she played in the violence suffered by the complainant; and
(b)Mr Bullen says that the Judge erred in failing to give any discount in recognition of his remorse and his offer of $1,000 to the complainant’s family for emotional harm.
Ms Jackson was out of time to bring her appeal and sought an extension of time to do so. As the delay is explained by Ms Jackson’s difficulties in obtaining legal representation and there was no objection by the Crown, we grant the application for an extension of time to file the notice of appeal.

The offending

The complainant, Colin Farrell, was a 60 year old decorator and plasterer who also dealt in drugs. He was suffering from Chronic Obstructive Pulmonary Disease for which…

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 Bullen v R

Details

AGLC: Bullen v The Queen [2017] NZCA 615
Case: [2017] NZCA 615
Decision Date: 19 December 2017

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Dennis Edward Bullen and Lynne Amanda Jackson appealed their sentences for aggravated robbery and aggravated injuring. The appellants contended that the starting point for their sentences was too high and that mitigating factors such as remorse were not adequately considered. The Court had to determine whether the starting point and the discount for remorse were appropriately assessed.

The Court found that the starting point of five years and nine months was too high given the nature of the offending. Although the crime involved planning and violence, the Court considered it more akin to Tecofsky v Police, which had a starting point of three years. The Court decided that a starting point of four and a half years would be more appropriate. Regarding remorse, the Court acknowledged that Dennis Bullen's offer of $1,000 to the victim's family was a genuine expression of remorse, which should have warranted a discount. The Court allowed a discount of four months from the starting point for Bullen, resulting in a sentence of four years and two months. For Jackson, the same reduction was applied, resulting in a sentence of four years and three months.

The Court granted the extension of time for Jackson to file the notice of appeal and allowed Bullen to adduce further evidence on appeal. The appeals against sentence were allowed, and the sentences were reduced as specified.

Orders