| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA296/2015 [2015] NZCA 551 |
| BETWEEN | PATRICK JOHN HAYWOOD |
| AND | THE QUEEN |
| Hearing: | 9 November 2015 |
Court: | Kós, Fogarty and Mallon JJ |
Counsel: | S Jefferson for Appellant |
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).
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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,…
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- AGLC
- Haywood v R [2015] NZCA 551
- Case
- [2015] NZCA 551
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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