Elia v The Queen - [2010] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND
CA277/2010
[2010] NZCA 382
BETWEENJOSEPH CHRISTOPHER ELIA

Appellant

ANDTHE QUEEN

Respondent

Hearing:5 August 2010

Court:Ellen France, Gendall and Courtney JJ
Counsel:G W Wells for Appellant

M F Laracy and P D Marshall for Respondent

Judgment:18 August 2010 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]        The appellant pleaded guilty to a number of charges, the most serious of which were two counts of aggravated robbery. He was sentenced on 9 April 2010 by Judge Blackie to a term of seven and a half years imprisonment.[1]
[1]      R v Elia DC Manukau CRI-2009-092-9869, 9 April 2010.
[2]        He appeals against sentence on the basis it is manifestly excessive. He argues, first, that the starting point adopted was too high especially compared with that of his co-offenders and, secondly, that the discount for his guilty plea was insufficient.
Background
[3]        The charges of aggravated robbery relate to two separate incidents. The first of these took place on the morning of 25 May 2009. The appellant and Adrian Pani broke into the victim’s house in Howick. Mr Pani was carrying a baseball bat. Mr Pani attacked the victim with the bat hitting him repeatedly. The victim tried to shield his head with his arms leading to a severely bruised elbow.
[4]        The victim was then taken to his car. The appellant got into the driver’s seat and they took the victim to a nearby shopping centre. Mr Pani still held the baseball bat. The two men forced the victim to withdraw all of his money from his bank accounts, a total of $150. They then took him home.
[5]        The second incident took place a few days later on 6 June 2009. This time the appellant was accompanied by Sigmund Croft. The two men had arranged to meet in a carpark with a man who was selling his car on the website “TradeMe”. After inspecting the car, Mr Croft got into the driver’s seat and the appellant into the passenger seat. In an effort to stop his car being stolen, the victim got into the back seat.
[6]        Mr Croft drove off at speed and on the wrong side of the road. The appellant, on seeing the victim, tried to punch him but was stopped from doing so by his seat belt. At some stage, Mr Croft stopped the car. He and the appellant removed the victim.
[7]        As the two men drove off, the victim jumped on to the rear of the car and clung to the spoiler. Mr Croft continued driving, swerving, braking and weaving, at speeds over 100 kilometres per hour unsuccessfully trying to dislodge the victim.
[8]        Again, Mr Croft stopped the car. The two men got out and attacked the victim. The appellant punched him at least once. Leaving the victim dazed and bruised on the footpath, the two men drove off. The victim needed hospital…

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 Elia v The Queen

Details

AGLC: Elia v The Queen [2010] NZCA 382
Case: [2010] NZCA 382
Decision Date: 18 August 2010

CaseChat Overview and Summary

The appellant, Joseph Christopher Elia, was convicted of two counts of aggravated robbery and subsequently pleaded guilty to other charges related to the incidents. He was sentenced to a term of seven and a half years imprisonment, which he appeals on the basis that the sentence was manifestly excessive. Specifically, he argues that the starting point for the sentence was too high, particularly when compared to the sentences of his co-offenders, and that the discount for his guilty plea was insufficient. The court was required to determine whether the starting point and the discount for the guilty plea were appropriately applied and whether the overall sentence was proportionate to the appellant's culpability.

The court considered the arguments put forward by the appellant's counsel regarding the starting point and the discount for the guilty plea. With respect to the starting point, the court found that the sentencing judge had not treated as aggravating factors those matters that were disputed by the appellant. The judge had considered the appellant's involvement in the events leading up to and during the robberies, including his role in driving the victim to the ATM and his participation in the second incident. The court concluded that the starting point of 10 years was justified, considering the totality of the charges faced by the appellant, including other serious offences and his previous criminal history. Regarding the discount for the guilty plea, the court found that the discount applied was within the appropriate range and that the appellant's delays in pleading guilty did not warrant a larger discount. The court upheld the application of the principles established in R v Hessell, which were relevant to determining the discount for the guilty plea.

The appeal against the sentence was dismissed. The court found no basis for interfering with the sentencing judge's approach, affirming that the sentence was proportionate to the appellant's culpability and the seriousness of the crimes committed.

Orders