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.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. 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.

1. 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.

2. 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.

3. 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.

4. 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

1. 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.

2. 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 High Noon.

3. Judge Roberts took a starting point of two years, eight months’ imprisonment for all the offending, noting that the weapon was deliberately taken and was used for an attack to the head.  It was also noted that the incident could have ended at the dairy or after the first encounter at the house, but Mr Eldershaw chose to arm himself and escalate it.

4. There were no mitigating factors, so the sentence remained unchanged.

Appeal

1. Two grounds of appeal are advanced.  The first is that insufficient account was taken of the provocation involved.  The second is disparity with the co‑defendant who received a sentence of six months’ home detention.

2. We address the disparity point first.  It has no merit.  The co-defendant obviously played a minor role, and was not charged with either of the assault counts.  These differences meant a lower end sentence of imprisonment which in turn meant different sentencing options were available.  The differences in outcomes are explicable and no appeal ground arises.

3. As for provocation we do not consider any recognition was required.  Had the car punching incident stood alone, then the point may have been of relevance.  But the reality is that the aggravated burglary is all down to Mr Eldershaw.  He left and returned.  He armed himself.  He entered the property when told not to.  He chose to use the weapon, and to do so by hitting someone in the head.  Nothing that went before mitigates this.

4. Mr Hannam sought to bring the situation within s 9(2)(c) of the Sentencing Act 2002, which provides that the conduct of the victim can be a mitigating factor.  However, as we have observed, the prior conduct of either victim ceased to have relevance at the termination of the first incident which was relatively minor.  The appeal ground is in effect asking this Court to accept that being bested in a fight is relevant mitigation for leaving and returning with weapons.  We reject that submission and instead consider the conduct to be an example of lawlessness which was met with an appropriate sentence.

Conclusion

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent