Greening v The King - [2023] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA590/2022
[2023] NZCA 432

BETWEEN	KARL GREENING Appellant
AND	THE KING Respondent

Hearing:	25 July 2023
Court:	Miller, Moore and Palmer JJ
Counsel:	G H Vear and B M Bosomworth for Appellant N L Jamieson and G A Kelly for Respondent
Judgment:	11 September 2023 at 11.00 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.
BLeave is granted to tender the s 27 report.
CThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Mr Greening appeals his sentence of six years and nine months’ imprisonment on one charge of wounding with intent to cause grievous bodily harm.[1] He was sentenced concurrently to one month’s imprisonment on the charge of obstructing or hindering a medical officer of health.[2]
[1]R v Greening [2022] NZDC 11352 [Sentencing notes] at [15].
[2]At [15].
The sole ground of appeal is that insufficient credit was given for personal mitigating factors disclosed in a report prepared under s 27 of the Sentencing Act 2002 for this appeal.
The appeal is approximately three and a half months out of time. Mr Greening has filed an affidavit explaining that there was a breakdown in his relationship with his previous lawyer and he was transferred around several prisons. The extension of time is granted.

Narrative of the offence and the sentencing

The charge of obstructing a medical officer arose out of Mr Greening’s insistence on travelling between addresses for non-essential purposes during the COVID‑19 lockdown. On 5 April 2020 he was tested for the virus and given clear instructions that he should remain isolated, given that he had been exposed to it. He did not follow these instructions. The police spoke to him and directed him to return to his isolating address. Instead, he went on 8 April 2020 to an address where he had formerly been a boarder.
There he drank beer with the victim, a 72-year-old man, who was lying in his bed. He assaulted the victim, targeting the victim’s head. It was alleged that he told the victim that he would kill him. One third of the victim’s ear was cut off with a sharp object, likely a knife, and he received a 12cm laceration wound to the back of his head, exposing the skull.
In his interview with the writer of the pre-sentence report, Mr Greening stated he and the victim had got into an argument over money he had transferred into the victim’s account, having lost his own bank card. He said that the victim refused to repay him.
Mr Greening elected trial. We were told that his proposed defence was that he acted in self-defence. On the information before us, that defence had no prospects of success. When that was put to Ms Vear, who appeared for Mr Greening on appeal, she suggested that the decision to plead not guilty might have had something to do…

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 Greening v The King

Details

AGLC: Greening v The King [2023] NZCA 432
Case: [2023] NZCA 432
Decision Date: 11 September 2023 at 11.00 am

CaseChat Overview and Summary

Karl Greening appeals against his sentence of six years and nine months’ imprisonment, imposed for wounding with intent to cause grievous bodily harm, and one month’s imprisonment for obstructing a medical officer. The appeal is on the sole ground that insufficient credit was given for personal mitigating factors disclosed in a report prepared under s 27 of the Sentencing Act 2002. The appeal is approximately three and a half months out of time. Mr Greening has filed an affidavit explaining that there was a breakdown in his relationship with his previous lawyer and he was transferred around several prisons. The extension of time is granted.

The Court considered the grounds of appeal. The Court was not satisfied that the Judge had erred in refusing to adjourn sentencing in circumstances where Mr Greening had failed to commission a s 27 report. The Court held that the Judge discussed the matters listed in s 27(1) and afforded Mr Greening a five per cent discount for cultural factors based on the PAC report. The total discount including the guilty plea was 22 per cent. The Court granted leave to tender a s 27 report on appeal.

The Court held that the s 27 report did not change anything. The PAC report contained the substance of the account given in the s 27 report, but the report contains more detail of abuse and cultural deprivation experienced by Mr Greening. However, the Court held that the index offending was very serious and given Mr Greening’s high risk of reoffending, community protection had to be taken into account. The Court held that there is reason to doubt that whānau support can prevent further offending, and so the question is what discount ought to have been offered to recognise the ways in which Mr Greening’s background may have contributed to the lead offence. The Court held that the Judge gave a generous discount for belated guilty pleas in circumstances where there was never a viable defence. The Court dismissed the appeal.

The Court granted the application for an extension of time to appeal, leave to tender the s 27 report, and dismissed the appeal.

Orders