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Goodman v R

Goodman v R

Case [2016] NZCA 64 11 March 2016

Sentencing

Limitation Periods

Admissibility of Evidence

Discount for Guilty Pleas

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA522/2015
[2016] NZCA 64

BETWEEN	MICHAEL NEIL GOODMAN Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	K L McHugh for Appellant M J Lillico and J D Slankard for Respondent
Judgment:	11 March 2016 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

After entering guilty pleas, Mr Goodman was convicted in the Invercargill District Court of assault with intent to injure and male assaults female. Judge Turner sentenced Mr Goodman to a term of imprisonment of two years and four months.[1]
[1]R v Goodman [2015] NZDC 15752.
Mr Goodman now appeals his sentence. The appeal was filed out of time but the Crown did not oppose an extension of time, which is accordingly granted.
In written submissions, Ms Goodman’s counsel Ms McHugh submitted the starting point and various uplifts were excessive, a discount for guilty pleas was inadequate and cumulative sentences should not have been imposed. At the hearing, this stance was modified and the key argument became that at each step of the sentencing process the Judge took the sternest view available. Thus, it was submitted that while each individual step might withstand appellate scrutiny, the combined effect was to render the end sentence manifestly excessive. That argument is obviously problematic because if none of the steps was incorrect, it is difficult to see how the outcome could be wrong. However, elsewhere in the oral argument, Ms McHugh did also submit that the Judge erred in respect of five of the steps.
In the circumstances, we have decided to address each of the steps but first turn to the factual background.

Factual Background

Police initially charged Mr Goodman with injuring with intent to injure. Two weeks prior to trial, Mr Goodman offered to plead guilty to the charge of male assaults female. The prosecution countered with an offer of downgrading the injuring with intent to injure charge to the lesser charge of assault with intent to injure. This was rejected by Mr Goodman.
On the first day of the trial, the charge of male assaults female was added by consent to the charge notice. The complainant then gave her evidence-in-chief. During cross-examination, it was put to her that Mr Goodman had not abused her for being a “nark” during the incident as she claimed. The prosecution then sought to adduce evidence of the recording of the 111 call made by the complainant while she was barricaded in her vehicle. Mr Goodman’s voice can be heard on the recording calling the complainant a “nark”.
The fact the complainant had made a call to emergency services was known by the defence, but neither the transcript nor the recording had been disclosed to the defence. Defence counsel (not Ms McHugh) was given the opportunity to listen to the…

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 Goodman v R

Details

AGLC: Goodman v R [2016] NZCA 64
Case: [2016] NZCA 64
Decision Date: 11 March 2016 at 2.00 pm

CaseChat Overview and Summary

Michael Goodman sought to appeal his sentence following his conviction for assault with intent to injure and male assaults female in the Invercargill District Court. The appeal was filed out of time, but the Crown did not oppose an extension of time. The Court of Appeal had to decide whether the sentence imposed was manifestly excessive, despite the appellant's counsel arguing that various steps in the sentencing process were incorrect.

The Court of Appeal found that the starting point and uplifts applied by the sentencing judge were within the available range, and the criticisms of the uplifts were not sustainable. The Court found that the judge was entitled to refuse a discount for restrictive bail conditions, as the appellant had been charged with serious drug offences during the bail period. The Court also found that the discount for the guilty pleas was appropriate, as the pleas resulted in a benefit to the appellant by reducing the charges against him. The Court found that concurrent sentences would have been more appropriate, but the judge had considered totality and made appropriate adjustments. The Court concluded that the sentence of two years and four months’ imprisonment was not manifestly excessive, and appellate intervention was not warranted.

The Court of Appeal granted the application for an extension of time to appeal, but dismissed the appeal against sentence.

Orders