Elliott v R - [2018] NZCA 526

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA424/2018
[2018] NZCA 526

BETWEEN	KANE JAMES ELLIOTT Appellant
AND	THE QUEEN Respondent

Hearing:	7 November 2018
Court:	Clifford, Dobson and Mander JJ
Counsel:	C D Bean for Appellant C A Brook for Respondent
Judgment:	27 November 2018 at 11.15 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentence of eight years’ imprisonment imposed in respect of the aggravated robbery of the Aberdeen Superette (charge 4) is quashed and substituted with a sentence of five years and four months’ imprisonment.
C The respective concurrent sentences of two years imprisonment in respect of aggravated wounding (charge 5) and the aggravated robbery of the Southern Cross Superette (charge 6) remain.
D The effective total sentence is therefore one of five years and four months’ imprisonment. The full term of the sentence must be served without parole.

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REASONS OF THE COURT

(Given by Mander J)

Kane Elliott appeals a sentence of eight years’ imprisonment imposed on him for two aggravated robberies and an associated charge of aggravated wounding.[1] He argues the sentence was manifestly excessive. The Crown accepts the appeal must be allowed because the sentencing Court failed to provide credit for Mr Elliott’s guilty pleas. However, the second aspect of the appeal, namely that the starting point for the sentence on the lead offence was too high, is contested.

Background

[1]R v Elliott [2018] NZDC 15430 at [21].

On 13 August 2017, Mr Elliott with the assistance of associates robbed two superettes. Around midday, he and two other men went to the Aberdeen Superette. One of the associates remained in a stolen getaway vehicle while Mr Elliott and the other man entered the shop. They were disguised and armed with a knife and a screwdriver. They stole the cash register and returned to the vehicle.
As they left the scene, their vehicle struck the sole employee of the Superette who had come out of the shop. He was knocked to the ground when the car was reversed in a sharp turn as the employee tried to approach the rear door. He suffered a broken leg. That event gave rise to the aggravated wounding charge.
In the evening, Mr Elliott, together with three others, went to the Southern Cross Superette in the same stolen car. Three of the men, including Mr Elliott, went into the Superette. Again, the robbers were disguised and armed with a knife and a screwdriver. One of two employees present triggered a panic alarm. Mr Elliott struck him in the arm with the screwdriver, although that did not result in any significant injury. The offenders stole the cash register and some cigarettes before leaving the scene.

The sentencing

The sentencing Judge took a starting point of six years’ imprisonment for the Aberdeen Superette aggravated robbery. From that starting point, a two-year uplift was applied to reflect the aggravated wounding charge. A further uplift of two years’ imprisonment was imposed…

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 Elliott v R

Details

AGLC: Elliott v R [2018] NZCA 526
Case: [2018] NZCA 526
Decision Date: 27 November 2018 at 11.15 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Kane James Elliott appeals against a sentence of eight years’ imprisonment imposed for two aggravated robberies and an associated charge of aggravated wounding. The central issue in the appeal is whether the sentence was manifestly excessive. The Crown concedes that the appeal must be allowed because the sentencing Court failed to provide credit for Elliott’s guilty pleas. However, the Crown contests the second aspect of the appeal, which is that the starting point for the sentence on the lead offence was too high. The appeal was heard on 7 November 2018, and judgment was delivered on 27 November 2018.

The Court of Appeal found that the starting point for the aggravated robbery of the Aberdeen Superette was too high. The Court considered that a four-year starting point would have been more appropriate. The Court also found that the sentencing Judge erred by omitting to provide a discount for Elliott’s guilty pleas. The Crown accepted the sentencing Judge erred by omitting to provide such a discount. The Court of Appeal concluded that the end sentence, when adjusted for the guilty plea discount, should have resulted in a term of five years and four months’ imprisonment.

The Court of Appeal did not consider it appropriate to adjust the sentence to reflect Elliott’s loss of parole. The Court found that Elliott’s earlier offending was less serious and that he was a repeat offender for similar serious offending. The Court concluded that this was not the type of exceptional case which Parliament would have expected the statutory direction of non-parole to result in some modification of the sentence to avoid manifest injustice.

The appeal is allowed. The sentence of eight years’ imprisonment imposed in respect of the aggravated robbery of the Aberdeen Superette (charge 4) is quashed and substituted with a sentence of five years and four months’ imprisonment. The respective concurrent sentences of two years imprisonment in respect of aggravated wounding (charge 5) and the aggravated robbery of the Southern Cross Superette (charge 6) remain. The effective total sentence is therefore one of five years and four months’ imprisonment. The full term of the sentence must be served without parole.

Orders