| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA331/2013 [2013] NZCA 374 |
| BETWEEN | JASON RALPH ELDERSHAW |
| AND | THE QUEEN |
| Hearing: | 23 July 2013 |
Court: | White, Goddard and Simon France JJ |
Counsel: | J C Hannam for Appellant |
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
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- Eldershaw v R [2013] NZCA 374
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- [2013] NZCA 374
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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