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Cassidy v The Queen

Cassidy v The Queen

Case [2021] NZHC 873 22 April 2021

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-005

[2021] NZHC 873

BETWEEN
JEFFERY CASSIDY

Appellant

AND

THE QUEEN

Respondent

Hearing: 22 April 2021

Counsel:

M R Ridgley for appellant S T Patia for respondent

Judgment:

22 April 2021

ORAL JUDGMENT OF TOOGOOD J

Solicitors:
Thomson Wilson, Whangarei Crown Solicitor, Whangarei

CASSIDY v R [2021] NZHC 873 [22 April 2021]

[1] Jeffery Cassidy appeals against the sentence of seven years’ imprisonment imposed by Judge McDonald in the District Court at Whangarei on 21 December 2020 in relation to five charges for offending that occurred on 2 September 2020 and to which he pleaded guilty on 28 September 2020:1

(a)two charges of using a firearm against a member of the Police acting in the course of their duty knowing that person was a member of the Police;2

(b)one charge of driving in a manner which might have been dangerous to the public;3

(c)one charge of driving a motor vehicle with excess breath alcohol; and4

(d)one charge of failing to stop when required.5

[2] The Judge also ruled on an application for a review of sentence. He granted the review and cancelled a sentence of community work that had been imposed on Mr Cassidy for prior offending.

[3]The two key issues on the appeal are:

(a)whether the Judge adopted too high a start point (10 years’ imprisonment) on the charges of using a firearm against Police; and

(b)whether the Judge gave too small a discount for matters relevant to s 27 of the Sentencing Act 2002.

1      R v Cassidy [2020] NZDC 26795.
2      Crimes Act 1961, s 198A(1), maximum period of imprisonment: 14 years.
3      Land Transport Act 1998, s 35(1)(b), maximum period of imprisonment: three months or a fine not exceeding $4500, the court must also order the person be disqualified from holding or obtaining a driver’s licence for 6 months or more.
4      Land Transport Act 1998, s 56(1), maximum period of imprisonment: three months or a fine not exceeding $4500, the court must also order the person be disqualified from holding or obtaining a driver’s licence for six months or more.
5      Land Transport Act 1998, s 114(2); Land Transport Act 1998, s 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2). Maximum penalty: fine of $10,000 and the court must order the person to be disqualified from holding or obtaining a driver licence for six months.

Facts

[4] The facts are that at approximately 11.34 pm on 2 September 2020, Mr Cassidy was driving a motor vehicle on Kiripaka Road, Whangarei. Accompanying him in the passenger seat of the vehicle was an alleged co-offender.

[5] The vehicle driven by Mr Cassidy was seen by a Police patrol travelling at excessive speed. The Police patrol vehicle was crewed by two Police constables who activated their red and blue lights and siren in an attempt to stop the vehicle. Mr Cassidy did not stop the vehicle and continued to drive.

[6] Nearby to an…

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 Cassidy v The Queen

Details

AGLC: Cassidy v The Queen [2021] NZHC 873
Case: [2021] NZHC 873
Decision Date: 22 April 2021

CaseChat Overview and Summary

Jeffery Cassidy appeals against the sentence of seven years’ imprisonment imposed by Judge McDonald in the District Court at Whangarei in relation to five charges for offending that occurred on 2 September 2020 and to which he pleaded guilty on 28 September 2020. The Judge also ruled on an application for a review of sentence. He granted the review and cancelled a sentence of community work that had been imposed on Mr Cassidy for prior offending. The two key issues on the appeal are: whether the Judge adopted too high a start point (10 years’ imprisonment) on the charges of using a firearm against Police; and whether the Judge gave too small a discount for matters relevant to s 27 of the Sentencing Act 2002. The court found that the starting point of 10 years for very serious offending was within the available range and that the discounts for guilty pleas and s 27 factors were reasonably available to the Judge. The argument that the sentence was manifestly excessive fails and the appeal is dismissed accordingly.

Orders