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Haywood v R

Haywood v R

Case [2015] NZCA 551 17 November 2015

Sentencing

Cumulativity of Sentences

Totality Principle

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA296/2015
[2015] NZCA 551

BETWEEN	PATRICK JOHN HAYWOOD Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2015
Court:	Kós, Fogarty and Mallon JJ
Counsel:	S Jefferson for Appellant J E L Carruthers for Respondent
Judgment:	17 November 2015 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe concurrent sentences of six years six months’ imprisonment on the convictions for aggravated burglary and assault with intent to rob are quashed and concurrent sentences of five years’ imprisonment are substituted (to be cumulative on the seven year sentence already being served).

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

The appellant has been sentenced to seven years’ imprisonment for supply of 11 ounces of methamphetamine.[1] There is no appeal against that sentence. While on bail on that charge he committed aggravated burglary and assault with intent to rob. Following a jury trial, he was then sentenced to two concurrent sentences of six and a half years’ imprisonment for those offences.[2] These sentences were made cumulative upon the earlier seven year sentence, so creating an overall sentence of 13 and a half years’ imprisonment.

The issue

[1]R v Haywood DC Napier CRI-2012-041-2409, 27 July 2014.

[2]R v Haywood [2015] NZDC 8574.

In cases such as this, the legislative guidance is contained in s 85(2) of the Sentencing Act 2002 which provides:
85 Court to consider totality of offending
…
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
The sentencing Judge appreciated from the outset that the problem with the sentencing was going to be the need to take in the overall totality:[3]
[10] Patrick Haywood ultimately received a sentence of seven years’ imprisonment and Haydon Haywood two years eleven months and that has complicated the sentencing and the earlier sentencing to Turei Ataria to a very considerable degree. I am very clear as I expressed in my reasons for sentencing Turei Ataria that as to what the appropriate starting and end points are for this particular expedition. However, things are muddy to a considerable degree by the need to take in overall totality as far as it affects the two Haywoods and to put Ms Peterson’s involvement into a context that is appropriate, bearing in mind her relative lack of previous convictions.
[3]R v Haywood, above n 2.
The issue in this appeal is whether the second cumulative sentence of six and a half years adequately reflects the gravity of the overall offending. The appellant argues that the total sentence of 13 and a half years is manifestly excessive. Potentially he may serve ten years of that sentence before parole. He is 60 years of age. It is a “crushing sentence”.[4]
[4]R v Johansen (1997) 15 CRNZ 111 (CA) at 121.
In the District Court,…

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 Haywood v R

Details

AGLC: Haywood v R [2015] NZCA 551
Case: [2015] NZCA 551
Decision Date: 17 November 2015 at 4.00 pm

CaseChat Overview and Summary

In the case of Haywood v R, the Court of Appeal of New Zealand reviewed the appellant's appeal against the sentence imposed for aggravated burglary and assault with intent to rob. The appellant had already been serving a seven-year sentence for methamphetamine supply and committed these further offences while on bail. The Court was required to decide whether the cumulative sentence imposed for the aggravated burglary and assault with intent to rob was excessive, given the appellant's age and the overall gravity of his offending.

The Court found that the sentencing Judge had not adequately taken into account the totality of the appellant's offending when determining the appropriate sentence for the aggravated burglary and assault with intent to rob. The Judge had applied the same sentence to both the appellant and his son, without considering that the appellant's existing sentence for methamphetamine supply was significantly higher than his son's. The Court concluded that the overall sentence of 13 years and six months' imprisonment was manifestly excessive and did not adequately reflect the gravity of the overall offending.

The Court substituted the sentences for aggravated burglary and assault with intent to rob, imposing concurrent sentences of five years' imprisonment on each charge. These sentences were to be cumulative on the seven-year sentence already being served for methamphetamine supply. The Court found that this adjustment provided a more appropriate overall sentence that was proportionate to the gravity of the overall offending, taking into account the appellant's age and the connected nature of the offences.

Orders