Hancy v R - [2009] NZCA 469

IN THE COURT OF APPEAL OF NEW ZEALAND
CA297/2009
[2009] NZCA 469
THE QUEEN
v
THOMAS JOSEPH HANCY
Hearing:8 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ
Counsel:A J Bailey and S F Bailey for Appellant

B D Tantrum for Crown

Judgment:13 October 2009 at 10 am

JUDGMENT OF THE COURT

A        An extension of time for appealing is granted.
B        The appeal against sentence is allowed.
C        The sentence of five years three months’ imprisonment on the charge of causing grievous bodily harm is quashed and, in its place, a sentence of four years three months imprisonment is imposed.
D        The order that the appellant serve a minimum period of imprisonment of three years is quashed and, in its place, an order is made that the appellant serve a minimum period of imprisonment of two years six months.
E        All other sentences are confirmed.

REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
[1]       On 5 December 2008, driving a stolen car and pursued by the police, Mr Hancy collided with another vehicle at a light-controlled intersection, causing serious injury to the driver and a passenger of the other vehicle. He pleaded guilty to seven charges arising from the episode. The most serious was a charge under s 191(1) of the Crimes Act 1961 that, with intent to avoid arrest following the commission of a crime, he caused grievous bodily harm. That charge carries a maximum sentence of 14 years imprisonment.
[2]       Mr Hancy applies for an extension of time for appealing against a sentence of five years three months imprisonment, with a minimum period of imprisonment of three years. He submits that Judge Noble wrongly applied the principles laid down in R v Taueki [2005] 3 NZLR 372 (CA) and the sentence is, as a result, manifestly excessive.
[3]       The short delay in filing the appeal has been satisfactorily explained. There is no opposition to an extension of time. We accordingly grant an extension of time for appealing.
Facts
[4]       Early in the evening on Friday, 5 December 2008, Mr Hancy and an associate stole a Subaru stationwagon parked in central Christchurch. The associate drove the vehicle to Riccarton where he left the vehicle and Mr Hancy drove off alone. Soon afterwards he was seen by a police patrol driving at 77 kilometres per hour on a street with a 50 kilometre per hour speed restriction. The police activated their vehicle’s red and blue flashing lights and sounded their siren, indicating they wanted Mr Hancy to pull over.
[5]       He attempted to flee the police, weaving in and out of traffic in both lanes of a two-way, two-laned road, also controlled by a 50 kilometre per hour speed restriction. His speed was judged to be around 100 kilometres per hour. On several occasions he crossed the centre line. Other drivers were required to take evasive action.
[6]       He continued to drive at speeds approaching 120 kilometres per hour through central Christchurch. On two occasions he drove through…

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 Hancy v R

Details

AGLC: Hancy v R [2009] NZCA 469
Case: [2009] NZCA 469
Decision Date: 13 October 2009

CaseChat Overview and Summary

Thomas Joseph Hancy appeals against his sentence for causing grievous bodily harm with intent to avoid arrest, as well as the minimum term of imprisonment imposed. Hancy was driving a stolen car at excessive speeds and weaving in and out of traffic, leading to a collision with another vehicle. The collision caused serious injuries to the driver and a passenger of the other vehicle. Hancy pleaded guilty to seven charges, the most serious being causing grievous bodily harm with intent to avoid arrest following the commission of a crime. The Court of Appeal was required to determine whether the original sentence and the minimum term of imprisonment imposed were appropriate, particularly in light of the guidelines set out in R v Taueki. The Court held that the original sentence was excessive, as it did not adequately account for the differences between the type of offending in this case and the type of offending considered in Taueki. The Court also determined that the minimum term of imprisonment should be reduced. The appeal against sentence is allowed, and the sentence is reduced to four years and three months imprisonment, with a minimum term of imprisonment of two years and six months. All other sentences are confirmed.

Orders