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 rehabilitative steps the appellant had made since offending.  He acknowledged that the appellant had committed two breaches of community work while on bail for this offending.

[7]        We think that there is no doubt that the starting point for the gravity of the offending should, in the case of the appellant, have been lower than that of the principal offender, Mr Downing, to reflect a distinctly lesser degree of culpability.  Ms Inwood, for the Crown, said it could not go below three years.  We think that the starting point could not go below three and a half years for this offending.[2]  We do not see how the appellant’s youth and some efforts of rehabilitation could justify a reduction in that starting point by more than a third to reach two years’ imprisonment, the threshold for consideration of home detention.[3]  On the contrary, we think that in all the circumstances the end sentence of two and a half years’ imprisonment for the appellant has to be seen as a lenient sentence.  While the appellant did intervene to end the assault, that must be weighed against the fact that he initially participated in it.  Further, the extent of the appellant’s efforts at rehabilitation must be weighed against the fact that he did not immediately accept responsibility for his actions.  It is likewise a lenient sentence for Ms Thompson.

[2]      See R v Mako [2000] 2 NZLR 170 (CA).

[3]      Sentencing Act 2002 s 15A(1) and Parole Act 2002 s 4(1).

[8]        The trial Judge who sentenced the offenders was in a good position to judge the relative culpability of the two parties, the appellant and Ms Thompson.  The Judge considered that while Ms Thompson was a key organiser of the attack, she played a lesser role in the actual incident.[4]  Unlike the appellant, Ms Thompson was a first offender.  There is no clear cut case for the appellant having a lower end sentence than Ms Thompson. 

[4]      R v Holmes at [29].

[9]        The appeal is without merit.  It is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent