Eden v R - [2011] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2010
[2011] NZCA 54

BETWEEN MATTHEW DAVID EDEN
Appellant

AND THE QUEEN
Respondent

Hearing: 23 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: S Saunderson-Warner for Appellant
H W Ebersohn for Respondent

Judgment: 7 March 2011 at 3pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Allan J)

On 5 May 2010, Mr Eden pleaded guilty on arraignment in the Dunedin District Court to a charge of injuring with intent to injure.
On 3 August 2010, he was sentenced by Judge O’Driscoll to two years three months imprisonment.[1] He now appeals against that sentence.
[1] R v Eden DC Dunedin CRI-2009-002-0610, 3 August 2010.
The appellant’s offending was accurately summarised by the Judge as follows:
[1]     ... The offending occurred on 26 September last year. You were involved in a fight in Centennial Avenue, Alexandra with a group of other youths. You suffered an injury to your ear. I have a medical report before me which indicates that as a result you suffered a ruptured eardrum.
[2]     Later that evening a group of young people congregated in Pioneer Park, Alexandra. That runs alongside the main street, Centennial Avenue. You were travelling past the park with a group of other males. You stopped at the park after you recognised a person from the fight which you had been involved in earlier. You approached the person. He was aged 16. You began punching him around the head. You knocked him to the ground. You then began kicking him to his head and body. The summary of facts says that on two occasions during the attack you jumped into the air and landed on the victim’s head with both feet. The attack took place on grass and you were wearing gym shoes. The attack stopped when you were dragged away by friends. The victim was left on the ground unconscious and bleeding from the face. He was taken by ambulance for medical observation. He refused treatment and was discharged.
[3]     Both you and the victim were affected by alcohol. You were located some two hours later and interviewed by the police. You said that you had been subject to an assault earlier in the evening by the victim and his friends, and after seeing this person in the park you admitted punching him several times about the head. You denied kicking or jumping on him.

The District Court decision

In selecting a starting point the Judge had regard to the decision of this Court in R v Harris.[2] There, the Court observed that the sentencing exercise in respect of charges of injuring with intent to injure will logically commence with a consideration of the significance of the injuries suffered by the victim. In Harris it was said that:
[10] An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, 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 Eden v R

Details

AGLC: Eden v R [2011] NZCA 54
Case: [2011] NZCA 54
Decision Date: 7 March 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the sentence imposed on Matthew David Eden for injuring with intent to injure. The case arose out of an incident where the appellant engaged in a physical altercation, during which he kicked and stomped on the victim's head, causing significant injuries. The sentencing judge imposed a term of imprisonment of two years and three months, which the appellant now sought to appeal on the grounds that it was manifestly excessive. The appeal was dismissed by the Court of Appeal, which found that the sentence was appropriate in all the circumstances.

The Court of Appeal considered the sentencing principles set out in R v Harris, which provide a framework for sentencing in cases of injuring with intent to injure. The sentencing judge had determined that the case fell within the second band of the Harris framework, warranting a starting point of two years imprisonment. The judge added six months to the starting point to reflect the potential for greater harm, and a further six months to account for the appellant's previous convictions for violent offending. The judge then allowed a discount of nine months to reflect the guilty plea and certain mitigating factors, resulting in a final sentence of two years and three months imprisonment.

The appellant's counsel argued that the sentence was excessive, primarily on the basis that the starting point was too high and that the discount allowed for mitigating factors was insufficient. The Court of Appeal rejected these arguments, finding that the sentencing judge was entitled to impose an uplift to account for the potential for greater harm, and that the discount allowed for mitigating factors was appropriate in the circumstances. The Court concluded that the sentence imposed was appropriate and dismissed the appeal.

Orders