Holmes v R - [2010] NZCA 47

IN THE COURT OF APPEAL OF NEW ZEALAND
CA723/2009
[2010] NZCA 47
BETWEENTRENT GRANT HOLMES

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 February 2010

Court:Arnold, Harrison and Fogarty JJ
Counsel:C P Comeskey for Appellant

M J Inwood for Respondent

Judgment:2 March 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
[1]        The appellant was convicted following a jury trial for the offence of being a party to an aggravated burglary and to injuring with intent to cause grievous bodily harm.
[2]        On sentencing Judge B Davidson, who had presided at the trial, took a starting point of five years’ imprisonment for the principal offender, Mr Downing, and after considering aggravating factors increased that to produce an end sentence of five and a half years. He adopted the same five year starting point for the appellant, reducing it to an end sentence of two and a half years, to reflect the appellant’s lesser role in the offending, his limited criminal history and his efforts at rehabilitation.[1] There was a third offender, Ms Thompson, another party to the offending who received the same end sentence of two and a half years’ imprisonment.
[1]      R v Holmes DC Wellington CRI-2008-083-3077, 6 November 2009.
[3]        The three offenders had travelled to the victim’s home. The appellant and Ms Thompson knew him. Ms Thompson had previously lived at the address. She drove the car to the home. At first the two men burst into the victim’s home uninvited and unannounced. Mr Downing began to demand money and make threats. The appellant drew the curtains at the request of Mr Downing, who began to strike the victim on the head, body and legs with the blunt end of a small tomahawk axe. The appellant stood nearby to prevent escape or resistance.
[4]        Later the appellant asked Mr Downing to stop, more than once. During the attack Ms Thompson came into the house and encouraged Mr Downing. Eventually all three left.
[5]   The probation report recommended home detention. On this appeal Mr Comeskey, for the appellant, argued for that outcome.   To that end he argued that a clear distinction should have been drawn between Ms Thompson and the appellant, because she was the instigator and organiser of the attack. Accordingly, the appellant should have had a further discount from the sentence given to Ms Thompson of two and a half years. Greater weight should have been given to the appellant’s youth. He had only just turned 19 at the time of the offending. By comparison Ms Thompson was 23, and the principal offender, Mr Downing, was substantially older. Mr Comeskey pointed out that the appellant had intervened to bring the attack to an end, and said that this type of action should be encouraged by means of a sentence discount.
[6]        Mr Comeskey argued that this was a proper case for a sentence of home detention, being supported by the probation report, and by a number of…

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 Holmes v R

Details

AGLC: Holmes v R [2010] NZCA 47
Case: [2010] NZCA 47
Decision Date: 2 March 2010

CaseChat Overview and Summary

Trent Grant Holmes sought to appeal against his conviction and sentence for being a party to an aggravated burglary and injuring with intent to cause grievous bodily harm. The appeal was dismissed by the Court of Appeal of New Zealand. The primary legal issues before the court were whether the appellant's sentence should have been lower than that of the principal offender and whether the appellant's youth and efforts at rehabilitation justified a reduction in the starting point for the gravity of the offending. The court found that while the starting point for the appellant should have been lower than that of the principal offender to reflect a distinctly lesser degree of culpability, the end sentence of two and a half years' imprisonment for the appellant had to be seen as a lenient sentence. The court held that the appellant's youth and some efforts of rehabilitation could not justify a reduction in the starting point by more than a third to reach two years' imprisonment, the threshold for consideration of home detention. The appeal was dismissed.

Orders