Devon Wayne Blackbourn v The King - [2024] NZHC 2937

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-000022

[2024] NZHC 2937

DEVON WAYNE BLACKBOURN

v

THE KING

Hearing: 8 October 2024

Appearances:

E Riddell for Defendant W J Harvey for Crown

Judgment:

10 October 2024

JUDGMENT OF GRAU J

[Sentence appeal]

[1] Mr Blackbourn appeals his sentence of two years seven months’ imprisonment imposed in the Nelson District Court on 23 July 2024 on one charge each of injuring with intent to cause grievous bodily harm and injuring with intent to injure.1

[2] The basis of Mr Blackbourn’s appeal is that the sentence is manifestly excessive and home detention was the appropriate and least restrictive outcome in this case. Mr Blackbourn contends the starting point of four-and-a-half years was too high and there were insufficient reductions made for remorse, rehabilitative attempts,

1 Charges pursuant to Crimes Act 1961, ss 189(1) (maximum penalty of 10 years’ imprisonment) and 189(2) (maximum penalty of five years’ imprisonment) respectively. Mr Blackbourn was charged and convicted alongside two other co-offenders, Messrs Tawheri Funnell and Nathaniel Dooley (although only Mr Funnell is listed as the co-offender in respect of Mr Blackbourn on the Crown Charge Notice for resolution).

BLACKBOURN v R [2024] NZHC 2937 [10 October 2024]

personal circumstances, and the time he spent on restrictive electronically monitored (EM) bail conditions.

[3] The respondent’s position is that the starting point was in range, as were the reductions, so that a sentence of home detention cannot be reached unless the sentence is artificially tailored to achieve that result.

The offending

[4] Mr Blackbourn and the two co-offenders, Messrs Dooley and Funnell, were friends. At the time of the incident that gave rise to the charges, Messrs Blackbourn and Funnell were aged 23 and Mr Dooley was 20. The two victims, Messrs Brown and Brunning, were friends aged 41 and 42. The two groups did now know each other. Both were out drinking and socialising in Nelson late on the night of 21 July 2023, into the early hours of 22 July.2 The incident that gave rise to the charges was captured on CCTV.

[5] At about 3:30 am, Mr Blackbourn and his friends were on the footpath of Bridge Street in Nelson, near the entrance to Fiddle Lane. The two victims were in Fiddle Lane near the entrance. Messrs Dooley and Blackbourn approached and began to talk to them. Mr Funnell was on a seat nearby. A few minutes later, Mr Dooley suddenly punched Mr Brunning in the head with a closed fist multiple times, causing him to fall on the ground, seemingly unconscious.3

[6] Mr Brunning’s companion, Mr Brown, stepped forward and grabbed Mr Blackbourn, pushing Mr Blackbourn to the ground and punching him. Mr Funnell intervened by picking Mr Blackbourn up off the ground. Mr Funnell then grabbed Mr Brown and held him in place against a wall. While Mr Brown was restrained in this manner, Mr Blackbourn proceeded to punch Mr Brown in 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 Devon Wayne Blackbourn v The King

Details

AGLC: Devon Wayne Blackbourn v The King [2024] NZHC 2937
Case: [2024] NZHC 2937
Decision Date: 10 October 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Devon Wayne Blackbourn appealed the sentence of two years and seven months' imprisonment imposed on him by the Nelson District Court on charges of injuring with intent to cause grievous bodily harm and injuring with intent to injure. The appeal was based on the argument that the sentence was manifestly excessive and that home detention should have been the appropriate and least restrictive outcome. The Crown argued that the starting point and reductions were appropriate and that a home detention sentence could not be justified. The court considered whether the starting point of four-and-a-half years was too high and whether sufficient reductions were made for factors such as remorse, rehabilitative attempts, personal circumstances, and time spent on electronically monitored bail. The court found that the starting point was within an available range and that the credits applied were appropriate. Although a small reduction could have been made for the impact of imprisonment on Blackbourn's son, the court considered that it would amount to tinkering to reduce the sentence by two-and-a-half to three months. The appeal was therefore dismissed.

Orders