Byford v The Queen - [2011] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND

CA710/2010
[2011] NZCA 316

BETWEEN ROY BRUCE BYFORD
Appellant

AND THE QUEEN
Respondent

Hearing: 1 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: D R F Gardiner for Appellant
S B Edwards for Respondent

Judgment: 8 July 2011 at 2 pm

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

B The appeal is allowed to the extent that the order that the appellant must serve a minimum period of imprisonment of three years is quashed.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

The appellant pleaded guilty to charges of kidnapping and burglary. Following a disrupted sentencing hearing, Judge Moore sentenced him to imprisonment for five years four months on the kidnapping charge and three years concurrently on the burglary. The Judge also imposed a minimum non-parole period of three years.[1]
[1] R v Byford DC Waitakere CRI-2010-090-777, 16 April 2010.
The appellant appeals against the sentence imposed on him.
The appeal is out of time. The sentence was imposed on 16 April 2010. The appeal was not filed with this Court until 26 October 2010. However the appellant has always intended to appeal. He filed the initial appeal with the High Court in error. In the circumstances the Crown does not oppose the application for an extension of time. We grant it.

The offending

In the early afternoon of 22 September 2009 the appellant went to an address in Titirangi. The owners of the property were not known to the appellant. He says he went there to recover jewellery taken by the occupants from some friends of his. Although the owners were not at home, their cleaner, a 66 year old woman, was. When the victim answered the door she was confronted by the appellant. He grabbed her neck with both hands and forced her back inside the address. He shut the door and pushed the victim onto the ground, face first. He then dragged her by the wrists across the floor into the laundry where he wrapped the tape that he had brought with him around her mouth and eyes, while repeatedly telling her not to look at his face. He then used other material he had brought with him to bind her wrists behind her back. The appellant then attempted to force the victim into the laundry cupboard. She struggled so he left her lying on her stomach on the laundry floor. The appellant then went through the house and stole items to a value of $7,235. In the meantime the victim managed to free herself. She escaped from the house onto the road where she was able to obtain help.
The appellant declined to comment when initially spoken to by the police. The pre-sentence report notes that he says before the offending he had been smoking P with some female friends, the same ones who had taken him to the property to recover their jewellery. The pre-sentence report records the…

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 Byford v The Queen

Details

AGLC: Byford v The Queen [2011] NZCA 316
Case: [2011] NZCA 316
Decision Date: 8 July 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Roy Bruce Byford against his sentence for kidnapping and burglary. The appellant, represented by D R F Gardiner, argued that the sentence was manifestly excessive and that the Judge had failed to consider his psychological issues adequately. The Crown, represented by S B Edwards, did not oppose the application for an extension of time for the appeal, which was out of time but filed in error with the High Court initially.

The legal issues revolved around whether the sentence was excessively harsh, whether the Judge appropriately considered the appellant's psychological state, and whether the imposition of a minimum non-parole period was justified. The Court examined the appellant's criminal history, the nature of the offences, and the Judge's reasoning in determining the sentence.

The Court found that while the sentence of five years four months was appropriate, the imposition of a minimum non-parole period of three years was problematic. The appellant was not present when the sentence was imposed, and the Crown had not sought such a period. The Court noted that previous decisions had criticised the imposition of minimum terms without proper consideration or submissions from the appellant. The Court quashed the minimum non-parole period, noting that it would only delay the appellant's access to necessary treatment.

The appeal was allowed to the extent that the minimum period of imprisonment was quashed, but the appeal against the lead sentence was dismissed.

Orders