Eldershaw v R - [2013] NZCA 374

IN THE COURT OF APPEAL OF NEW ZEALAND

CA331/2013
[2013] NZCA 374

BETWEEN	JASON RALPH ELDERSHAW Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2013
Court:	White, Goddard and Simon France JJ
Counsel:	J C Hannam for Appellant J E Mildenhall for Respondent
Judgment:	15 August 2013 at 10.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Eldershaw appeals a sentence of two years, eight months’ imprisonment imposed by Judge Roberts in relation to one count of aggravated burglary, but also incorporating culpability for one count of assault with a weapon, and one of common assault.[1] The offending arose from one ongoing incident.

Facts

[1]R v Eldershaw DC New Plymouth CRI-2011-043-3882, 30 April 2013.

Mr Eldershaw was walking along the road with his partner and child. He became annoyed with a young man sitting in a nearby car. What triggered the dispute is not clear, but it led to Mr Eldershaw approaching the car and punching the young man. The car moved off. Mr Eldershaw clung on.
The car’s destination was but 200 metres away, that being where the young man lived with, amongst others, his father. The father came out and advised Mr Eldershaw that any further activity would be with him, rather than with his son. Seemingly the young man’s father has a local reputation; in matters of physical endeavour, he is not to be trifled with. It seems Mr Eldershaw was unaware of this, and to his detriment he took up the invitation.
Mr Eldershaw then left the scene, but returned shortly later with a friend and two baseball bats. It seems the friend became rather less enthusiastic when he realised the destination, but Mr Eldershaw pressed on. He was told not to enter the property, but he did. He struck the young man with the baseball bat causing a head wound of comparatively minor significance. Then he again accepted the father’s invitation to re-engage. The outcome was the same. Meanwhile the friend had also come onto the property but he just stood nearby, holding his baseball bat.
Out of all this Mr Eldershaw was charged with aggravated burglary for entering the property with the bat, assault with a weapon, being the hit to the young man’s head, and common assault being the punches initially thrown at the car. He himself suffered some heavy facial bruising. His friend was charged with aggravated burglary.

The sentencing

Judge Roberts noted Mr Eldershaw was a 39 year old man who generally had his life in order. He had been on a benefit but since the incident had obtained work.
The Judge rejected Mr Eldershaw’s statement that he went to the house with the baseball bat only to have a discussion. Understandably the Judge described it as utter nonsense, and inconsistent with the jury verdict on the burglary count. The Judge observed the two men’s approach to the house must have resembled a scene from

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 Eldershaw v R

Details

AGLC: Eldershaw v R [2013] NZCA 374
Case: [2013] NZCA 374
Decision Date: 15 August 2013 at 10.00 am

CaseChat Overview and Summary

Jason Ralph Eldershaw appealed against a two-year, eight-month sentence of imprisonment imposed by Judge Roberts in relation to one count of aggravated burglary, assault with a weapon, and common assault. The sentence incorporated culpability for all three counts, which arose from a single incident. The appeal was dismissed by the Court of Appeal of New Zealand.

The legal issues in this case were whether sufficient account was taken of the provocation involved, and whether the sentence was disparate when compared to the co-defendant who received a sentence of six months' home detention. The Court of Appeal found that the disparities were explicable due to the differences in the roles and charges of the co-defendant. Furthermore, the Court considered that no recognition was required for the provocation, as the aggravated burglary was solely due to Mr Eldershaw's actions.

The Court of Appeal held that Mr Eldershaw's appeal against sentence was without merit. The sentence imposed by Judge Roberts was deemed appropriate for the offence committed, and the appeal was dismissed. The appeal was dismissed on the basis that the provocation was not a mitigating factor, and that the disparity in sentencing was explicable due to the differences in roles and charges of the co-defendant.

Orders