Deane v R - [2011] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA496/2010
[2011] NZCA 60

BETWEEN TRACEE MARIE DEANE
Appellant

AND THE QUEEN
Respondent

Hearing: 22 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: S J Zindel for Appellant
K Laurenson for Respondent

Judgment: 10 March 2011 at 10.30 am

JUDGMENT OF THE COURT

A An extension of time to appeal is granted.

BThe appeal is allowed. The sentence of two years eight months’ imprisonment is quashed and a sentence of two years four months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Gendall J)

This is an application for leave for an extension of time to appeal against an effective sentence of two years eight months’ imprisonment imposed by Judge Zohrab in the District Court at Nelson on charges of conspiring to bring a false accusation in breach of s 115(a) of the Crimes Act 1961 (two years’ imprisonment) and three summary charges of using a document with intent to obtain pecuniary advantage, two of theft, one of driving whilst licence was suspended and one of breach of community work, (eight months cumulative imprisonment). Leave to bring this appeal out of time is necessary. As the appellant’s previous counsel filed her appeal in error in the High Court, but within time, it is not contended by the respondent that leave should be declined and it is accordingly granted. The matter proceeds on the merits.
Initially counsel for the appellant had advanced as a ground for appeal the proposition that the District Court had no jurisdiction to sentence the appellant. This was because the lead offence was indictable, so that sentence had to be imposed by the High Court. However, counsel overlooked the fact that the District Court Judge had an indictable warrant and had jurisdiction to impose sentence. The appeal has accordingly proceeded solely on the basis that the effective sentence of two years eight months’ imprisonment was manifestly excessive.

Background

On 7 May 2009 the appellant and her daughter were at Nelson Public Library using computers. A 25 year old male, who has a mental impairment, was also present using a computer. He was known to the appellant. There had been a history of animosity between the appellant and the man. After he left the library the appellant and her daughter discussed a plan as to how they could “set him up”. Their aim was to frame him with a crime. So they returned to the library, the appellant went to the toilet and her daughter entered the computer area. A short time later the daughter left the library, telephoned the police and made an allegation that a man, identified as the 25 year old male, had indecently touched her. Police patrols began to look for the alleged offender. The daughter made her statement to the police describing and identifying the male, claiming that he had indecently assaulted her in a number of ways as she was leaving the library. She not only described the proposed victim, but…

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 Deane v R

Details

AGLC: Deane v R [2011] NZCA 60
Case: [2011] NZCA 60
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the case of Deane v R, the appellant, Tracee Marie Deane, appealed against her sentence imposed by the District Court at Nelson. The court granted an extension of time for the appeal to be heard. The appellant was sentenced to two years eight months’ imprisonment for conspiring to bring a false accusation in breach of section 115(a) of the Crimes Act 1961, and eight months cumulative imprisonment for three summary charges of using a document with intent to obtain pecuniary advantage, two of theft, one of driving whilst licence was suspended, and one of breach of community work. The appeal proceeded on the basis that the effective sentence was manifestly excessive. The court found that the starting point for the lead offence was appropriate, but the starting point for the other minor offences was too high. The court allowed the appeal and substituted a sentence of two years four months’ imprisonment.

The legal issues the court was required to decide were whether the District Court had jurisdiction to sentence the appellant, and whether the effective sentence of two years eight months’ imprisonment was manifestly excessive. The court found that the District Court did have jurisdiction to sentence the appellant as the District Court Judge had an indictable warrant. The court also found that the effective sentence was manifestly excessive, and substituted a sentence of two years four months’ imprisonment.

The court's reasoning was that the starting point for the lead offence was appropriate, but the starting point for the other minor offences was too high. The court found that a starting point of six months was the most that could have been justified for the other minor offences, with a deduction of two months for the guilty plea. The court also noted that the appellant had a history of dishonesty offences and had defied a community work sentence on a charge of burglary. The court found that the overall effective sentence of two years eight months’ imprisonment was too high, and a sentence of two years four months’ imprisonment should have resulted. The court substituted the sentence accordingly.

In conclusion, the court allowed the appeal and substituted a sentence of two years four months’ imprisonment. The court found that the District Court had jurisdiction to sentence the appellant, and that the effective sentence of two years eight months’ imprisonment was manifestly excessive. The court substituted the sentence accordingly.

Orders