Hancock v R - [2012] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA688/2011
[2012] NZCA 36

BETWEEN KEVIN ALLAN HANCOCK
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: M A Stevens for Appellant
J M Jelas for Respondent

Judgment: 24 February 2012 at 11.45 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of seven years six months imprisonment is quashed and a sentence of six years nine months imprisonment is imposed in its place.

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REASONS OF THE COURT

(Given by Andrews J)

Introduction

The appellant pleaded guilty in the District Court at Dunedin to a charge of causing grievous bodily harm with intent to do so,[1] and a charge of intentional damage.[2] He was sentenced by Judge O’Driscoll on 29 September 2011 to seven years six months imprisonment.[3]
[1]      Crimes Act 1961, s 188(1).
[2]      Crimes Act 1961, s 269.
[3]      R v Hancock DC Dunedin CRI-2011-012-2819, 29 September 2011.
The appellant has appealed against sentence on the grounds that it is manifestly excessive. In particular, he says that the District Court Judge gave insufficient recognition to provocation by the victim, and that the starting point adopted by the Judge was too high.

Factual background

On 2 July 2011 the appellant, his son (Dylan Hancock) and a third person drove to an address in South Dunedin. They deliberately rammed their car into the side of a car being driven by a woman associate of the male victim, Lance Barbarich, who was a passenger in the car.
The appellant and his son then got out of their car. They and the associate were armed with weapons described by witnesses as being a sledge hammer, knives, sticks, and a log splitter. The appellant accepted that he had a log splitter. The woman was removed from the car and the appellant, his son, and the associate struck the victim repeatedly about the head. The victim was also stabbed and cut with knives. It was not suggested that the appellant had used a knife. The appellant, his son, and the associate had to reach into the car to carry out the attack.
The major injury to the victim was described by a neurosurgeon as being a moderately severe head injury (fractured skull), in keeping with multiple blows with a heavy object. The victim also received several other injuries, including contusions, lacerations, and abrasions. One of his ears was almost severed.

District Court sentencing

In order to set a starting point, the Judge identified aggravating factors of the appellant’s offending as follows (referring to the factors set out in R v Taueki):[4]
(a) There was extreme violence and this was a prolonged incident.
(b)It was premeditated and it was premeditated to the extent that you had armed yourself with a weapon. I note also in the pre-sentence report that you made comments about drinking before going to the victim’s address in order to make yourself angry.
(c)There were serious injuries to the victim.

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 Hancock v R

Details

AGLC: Hancock v R [2012] NZCA 36
Case: [2012] NZCA 36
Decision Date: 24 February 2012

CaseChat Overview and Summary

Kevin Allan Hancock appealed against his sentence of seven years and six months imprisonment, imposed by the District Court at Dunedin for causing grievous bodily harm with intent and intentional damage. The Court of Appeal of New Zealand allowed the appeal and substituted a sentence of six years and nine months imprisonment. The appellant argued that the District Court Judge failed to give sufficient recognition to provocation by the victim and that the starting point for sentencing was too high. The Court of Appeal found that the Judge appropriately balanced the mitigating factor of provocation against the aggravating factor of vigilante action. However, the Court held that the starting point of ten years imprisonment was too high and was not consistent with the starting points in similar cases. The Court of Appeal concluded that the appropriate starting point was nine years imprisonment, and applied a discount of 25 per cent for personal factors and the appellant's guilty pleas, arriving at an end sentence of six years and nine months imprisonment.

The Court of Appeal quashed the sentence of seven years and six months imprisonment and imposed a sentence of six years and nine months imprisonment in its place.

Orders