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French v The King

French v The King

Case [2023] NZCA 176 17 May 2023

Criminal Liability

Sentencing

Totality

Aggravating and Mitigating Factors

Premeditation

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA571/2022
[2023] NZCA 176

BETWEEN	DANIEL GARY FRENCH Appellant
AND	THE KING Respondent

Hearing:	29 March 2023 (further submissions received 30 March 2023)
Court:	Cooper P, Lang and Downs JJ
Counsel:	A J Bailey for Appellant M G McClenaghan and J E Lancaster for Respondent
Judgment:	17 May 2023 at 11.00

JUDGMENT OF THE COURT

A The application to recall the conviction appeal judgment is declined.

B The appeal is allowed and the sentence of three years’ imprisonment for manslaughter is set aside. A sentence of two years six months is substituted, to be served cumulatively on the sentences imposed in the conviction appeal judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

This is an appeal against a sentence of three years’ imprisonment imposed by Osborne J after the appellant, Daniel French, pleaded guilty to a charge of manslaughter.[1] It is said that the sentence, to be served cumulatively on previous sentences for other offending totalling seven years and two months’ imprisonment, resulted in a sentence that, considered overall, was manifestly excessive.
[1]R v French [2022] NZHC 2470 [Osborne J’s sentencing notes].
The manslaughter charge was laid following a successful appeal by Mr French from his conviction for murdering the deceased Luke Sears, a patched member of the King Cobras gang.[2] We will call this the conviction appeal judgment.
[2]Sullivan v R [2021] NZCA 702 [conviction appeal judgment].
In order to address the arguments on appeal, it is necessary to set out the unusual background of the case.

Background

Mr French was one of three defendants at the trial. His conviction was as a party to a murder committed by a co-defendant Alistair Cochrane.[3] Mr Sears had been demanding money from Mr French and threatening him in the days leading up to the fatal incident in which Mr Sears was shot by Mr Cochrane. Mr Sears had assaulted Mr French in two incidents on the day before the shooting and had also threatened him with a pistol. A further altercation the following day led to the homicide.
[3]R v Cochrane [2020] NZHC 1485 [Gendall J’s sentencing notes]. The third defendant, Ms Sullivan was not charged with murder; she faced five charges of unlawful possession of a firearm and one charge each of unlawful possession of ammunition and attempting to obstruct the course of justice by providing false information to the police. Her appeal against conviction was dismissed (conviction appeal judgment, above n 2, at [134]).
The circumstances of the murder and the role of the defendants in it were addressed by this Court in its judgment of 20 December 2021 allowing Mr French’s appeal.[4] Near the beginning of the judgment the Court set out a narrative of events, which it based on the sentencing notes of the trial judge, Gendall J. We can adopt that narrative for present purposes:[5]
[4]Conviction appeal judgment, above n 2, at [129].
[5]At [8]–[22] (footnotes omitted).

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 French v The King

Details

AGLC: French v The King [2023] NZCA 176
Case: [2023] NZCA 176
Decision Date: 17 May 2023 at 11.00

CaseChat Overview and Summary

This appeal is against a sentence of three years' imprisonment imposed by Osborne J after Daniel French pleaded guilty to a charge of manslaughter. The appellant argued that the sentence, to be served cumulatively on previous sentences for other offending totalling seven years and two months' imprisonment, resulted in a sentence that, considered overall, was manifestly excessive. The appeal was advanced on the basis that the Judge wrongly identified aggravating features, overlooked a mitigating factor, adopted an excessively high starting point and failed properly to adjust the overall sentence for totality. The court declined the application to recall the conviction appeal judgment. The appeal was allowed and the sentence of three years' imprisonment for manslaughter was set aside. A sentence of two years six months was substituted, to be served cumulatively on the sentences imposed in the conviction appeal judgment.

Orders