C (CA155/2014) v R - [2015] NZCA 33

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA155/2014
[2015] NZCA 33

BETWEEN	C (CA155/2014) Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2015
Court:	Cooper, Venning and Andrews JJ
Counsel:	W N Dollimore for Appellant S K Barr for Respondent
Judgment:	27 February 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Mr C appeals against his sentence of four years and two months’ imprisonment on two representative counts of assault with a weapon, two representative counts of assault on a child, and one count of injuring with intent to injure. That sentence was imposed by Judge Burnett in the Hamilton District Court on 25 February 2014, after Mr C was convicted following a jury trial.[1]

Factual background

[1]R v [C] DC Hamilton CRI-2013-073-85, 25 February 2014.

Mr C is a relative of the two victims, T and W. The two boys were in the care of Mr C and his wife for two years up until late 2012. The children were both under ten years old. They lived with Mr and Mrs C on a rural property and attended a local school. Mr and Mrs C have two sons, one born while T and W were in their care.
T and W gave evidence of various acts of violence committed by Mr C against them while they were in his care. T described being whacked with a hose on a number of occasions, usually on his bottom but also on his head and hands. Following an incident at school, in which T fought with another boy, he described being tied to the bed by Mr C who continued to strike him with the hose. W also described the hose being used to strike his bottom and his hands. On one occasion his hand swelled up and turned a purplish colour. W was taken to a doctor with this hand injury, where Mrs C claimed that the damage was caused by a motorbike accident. On another occasion, W described being struck with the hose on his bottom until it bled. No medical treatment was sought, and he was told he would have to wait until his injuries healed. Both T and W also described being hit about the body, head and face by Mr C with a closed fist.
The final incident with T, which he described as the worst, and in respect of which Mr C was charged with injuring with intent to injure, occurred in November 2012. T’s evidence was that Mr C accused him of cheating at school and was dissatisfied with his response. This argument turned violent with Mr C punching T repeatedly in the living room. Mr C then told T to go to the bathroom…

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 C (CA155/2014) v R

Details

AGLC: C (CA155/2014) v R [2015] NZCA 33
Case: [2015] NZCA 33
Decision Date: 27 February 2015 at 2.30 pm

CaseChat Overview and Summary

In this case, the appellant, Mr C, appealed against his sentence of four years and two months’ imprisonment, imposed by Judge Burnett in the Hamilton District Court following his conviction on multiple charges of assault. Mr C, a relative of the victims, was found guilty of various acts of violence against two boys, T and W, while they were in his care. The court had to decide whether the sentence was manifestly excessive and if the Judge had applied the correct sentencing principles. The appeal was dismissed by the Court of Appeal of New Zealand, which found that the sentence was within the appropriate range, given the combination of aggravating factors and the overall totality of the offending. The court also noted that the Judge had applied the correct sentencing principles from previous cases. Therefore, the appeal against the sentence was dismissed, and Mr C’s sentence remained at four years and two months’ imprisonment.

Orders