Daniels v R - [2015] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

CA713/2014
[2015] NZCA 295

BETWEEN	BEN PENE DANIELS Appellant
AND	THE QUEEN Respondent

CA731/2014
BETWEEN	VAN JASON DANIELS Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	C D Bean for Ben Daniels G A Walsh for Van Daniels K J Cooper for Respondent
Judgment:	9 July 2015 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Van Daniels (Van) and his brother Ben Daniels (Ben) were found guilty by a jury on charges of injuring with intent to injure and assault with a weapon. In addition, the jury found Van guilty on a charge of aggravated burglary.
On 21 November 2014 Judge Ruth sentenced Van to four years’ imprisonment on the charge of aggravated burglary, which he treated as the lead charge, together with concurrent sentences on the remaining two charges.[1] The Judge sentenced Ben to three years’ imprisonment on the charge of injuring with intent to injure, and imposed a concurrent sentence of six months’ imprisonment on the charge of assault with a weapon.
[1]R v Daniels DC Hamilton CRI-2013-019-2395, 21 November 2014.
Both brothers appeal against the sentences the Judge imposed. They contend the Judge erred in principle in constructing the sentences, and that the end sentences were manifestly excessive as a result.

Background

The Judge sentenced the appellants on the basis of both the evidence given at trial and material contained in a summary of facts that the Crown apparently filed before sentencing. It is unclear why the latter document was taken into account, because it contained material that was inconsistent in some respects with the jury’s verdicts. As the Judge who had presided over the trial, Judge Ruth could also be expected to be familiar with the facts disclosed by the evidence given at trial. We do not consider, however, that the inconsistencies contained in the summary of facts affected the sentences that the Judge ultimately imposed.
The charges were laid following an incident that occurred on the morning of 7 April 2013. On that date the two appellants travelled to Cambridge in a vehicle driven by one of their associates, a Mr Hendry.[2] There they went to the home address of the victim, who was known to Mr Hendry but not to the two appellants.
[2]Mr Hendry faced charges at trial of aggravated burglary, injuring with intent to injure and threatening to kill, but was found not guilty on all charges.
The victim came to the gate of his property when he saw Mr Hendry’s vehicle arrive. The appellants and Mr Hendry got out of the vehicle and there was then a verbal altercation that ended with the victim retreating into his house. The appellants and Mr Hendry followed him inside. Van was the last to enter the house. By this stage Van was carrying a claw hammer. The victim’s partner was standing by 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 Daniels v R

Details

AGLC: Daniels v The Queen [2015] NZCA 295
Case: [2015] NZCA 295
Decision Date: 9 July 2015

CaseChat Overview and Summary

The appeals against sentence brought by Ben and Van Daniels were dismissed by the Court of Appeal of New Zealand. The two brothers had been found guilty of injuring with intent to injure, assault with a weapon, and aggravated burglary, and had appealed against the sentences imposed by Judge Ruth. Van was sentenced to four years' imprisonment on the charge of aggravated burglary and concurrent sentences on the remaining charges. Ben was sentenced to three years' imprisonment on the charge of injuring with intent to injure and a concurrent sentence of six months' imprisonment on the charge of assault with a weapon. The appellants argued that the Judge erred in principle in constructing the sentences and that the end sentences were manifestly excessive as a result.

The Court of Appeal found that the offending involved numerous aggravating features, including the fact that Van was part of a group of men who burst uninvited into the victim's home for the express purpose of assaulting him. Van was carrying the hammer as a weapon when he entered the house and used it to strike the victim about the shoulder and body. The attack resulted in the victim receiving significant injuries that took a considerable time to heal. The combined aggravating features of Van's offending justified a starting point of four years six months' imprisonment. The Court of Appeal found that the Judge gave Van an allowance of approximately ten per cent to reflect his youth and previous good character, and that this was not excessive. The Court also found that Ben was found guilty of offending that had the same aggravating features as that of his brother, other than the carriage and use of the hammer as a weapon. The jury's conclusion that Ben encouraged his brother to use the hammer to assault the victim also warranted discrete recognition. An uplift to reflect this factor therefore does not involve any element of double counting.

Orders