Fane v R - [2019] NZHC 408

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000006

CRI-2019-463-000012 [2019] NZHC 408

BETWEEN
CODY JAMES FANE

Appellant

AND

THE QUEEN

Respondent

Hearing: 20 February 2019

Appearances:

A Sykes and J Bartlett for Appellant A Gordon for Respondent

Judgment:

12 March 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 12 March 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Annette Sykes & Co, Rotorua Gordon Pilditch, Rotorua

CODY JAMES FANE v R [2019] NZHC 408 [12 March 2019]

[1] Mr Fane appeals the sentence imposed by Judge Snell in the Rotorua District Court on 28 September 2018.1

[2] The issue on appeal is how and to what extent the time Mr Fane spent in prison on recall, before he was sentenced, should be taken into account in the calculation of his term of imprisonment. It is not disputed that it should have been taken into account. As has happened before, there was a misunderstanding as to the need for this to be specifically addressed by the sentencing Judge.

[3]Mr Fane was charged with the following offences:

(a)discharging a firearm with reckless disregard;

(b)unlawful possession of a firearm; and

(c)breach of parole conditions (x 2).

Background

[4] The facts of the offending itself are of no moment to this appeal. The important information is the procedural history.

[5] Mr Fane was convicted of wounding with intent to cause grievous bodily harm in 2012. He was sentenced on 24 July 2012 to 10 years’ imprisonment with a minimum non-parole period of five years. He was given a first strike warning at that time.

[6] Mr Fane was released on parole on 31 January 2017. The current offending occurred on 22 April 2017. In brief, Mr Fane was in an altercation with two members of the Mongrel Mob. He discharged a firearm into their car. Luckily, they were not injured.

1 R v Fane [2018] NZDC 20679.

[7] Mr Fane was taken back into custody on 26 April 2017. Corrections made an application that Mr Fane be recalled to continue serving his previous sentence. An interim recall order was made on 27 April 2017, and a final recall order was made on 16 June 2017.

[8] Mr Fane remained in custody subject to the recall order until he was sentenced on 28 September 2018 for the current offending. The lengthy period between Mr Fane’s arrest and sentence was due to issues with the admissibility of evidence.
These issues were finally determined by the Court of Appeal in July 2018.2

[9] Mr Fane requested a sentence indication prior to his pleading guilty, and Judge Cooper issued one on 21 September 2018.

[10] In giving the sentence indication, Judge Cooper took into account that this was a gang conflict; Mr Fane displayed a high degree of recklessness in his offending; it was in a public place with members of the public nearby;…

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 Fane v R

Details

AGLC: Fane v R [2019] NZHC 408
Case: [2019] NZHC 408
Decision Date: 12 March 2019

CaseChat Overview and Summary

Cody James Fane appeals the sentence imposed by Judge Snell in the Rotorua District Court. The issue on appeal is the extent to which the time Mr Fane spent in prison on recall, before he was sentenced, should be taken into account in the calculation of his term of imprisonment. The court was required to determine whether the sentence should be backdated to the date Mr Fane was recalled to prison, or if a discount should be applied for the time spent on recall. The court considered the relevant statutory provisions and case law, including the Parole Act 2002 and the Sentencing Act 2002, and found that the appropriate method of recognising Mr Fane’s time spent on recall prior to sentencing is by way of a discrete discount at sentencing. The court concluded that the most appropriate course of action in this case was to allow a full discount, as the appellant suggests, and that Judge Snell erred in not giving a discount for the time spent on recall. The court substituted the sentence of three years and seven months’ imprisonment for a sentence of two years and two months’ imprisonment.

Orders