Fane v R

[2015] NZCA 561

IN THE COURT OF APPEAL OF NEW ZEALAND

CA62/2015
[2015] NZCA 561

BETWEEN	CODY JAMES FANE Appellant
AND	THE QUEEN Respondent

Hearing:	13 October 2015 (further submissions received 3 November 2015)
Court:	Ellen France P, Asher and Collins JJ
Counsel:	A T Sykes and R N Zwaan for Appellant I Murray and S Graham for Respondent
Judgment:	23 November 2015 at 2.15 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

1. On 20 June 2012 Cody James Fane pleaded guilty in the High Court at Rotorua to charges of causing grievous bodily harm, unlawful possession of a firearm and possession of cannabis for the purpose of sale.  He was sentenced by Heath J to 10 years’ imprisonment for that offending, with a minimum period of imprisonment of five years.[1]

   [1]R v Fane [2012] NZHC 1807 [sentencing notes].

2. Mr Fane’s notice of appeal was filed on 11 February 2015.  He applies for an extension of time to appeal.  He raises the following issues in respect of the sentence:

   (a)There was a failure of the High Court to take into account Mr Fane’s personal, family, whānau, community and cultural background under s 8(i) of the Sentencing Act 2002.

   (b)The Judge erred by not asking under s 27 of the Sentencing Act if there were any family or community members that wished to speak on Mr Fane’s behalf.

   (c)There were other mitigating factors, in particular the remorse of the appellant and provocation, which should have been taken into account.

Relevant background

1. At the time of the offending Mr Fane was 21 years old.  Through his mother he is of Te Arawa and Tainui heritage.  He had been living with the victim’s stepdaughter for approximately four years.  She was of the same age and also identifies as Māori.  They have two children.

2. Their first child, a daughter, was born prematurely while Mr Fane was in prison.  Not long after the child had come home from Starship Hospital she was taken to emergency services with breathing problems.  It was decided that the child had received a non-accidental head injury.  This was always denied by Mr Fane and his partner.

3. The child was then placed with Mr Fane’s partner’s parents.  His partner’s stepfather, the child’s step-grandfather, is the victim.  Under a Child Youth and Family (CYF) care and custody arrangement Mr Fane and his partner maintained close contact with the child while she was with the grandparents.  Their second child was removed by CYF at birth and was being raised in a separate household by Mr Fane’s aunt.

4. On the day of the offending Mr Fane and his partner were visiting his partner’s parents’ home in Rotorua.  Their daughter was present.  The victim wanted to take her with him to hospital to visit his other daughter who had just given birth to her second child.  Mr Fane did not want the victim to…