Horner v The Queen - [2019] NZHC 1091

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-19

[2019] NZHC 1091

BETWEEN
GRAEME HIRST HORNER

Appellant

AND

THE QUEEN

Respondent

Hearing: 1 and 16 May 2019

Appearances:

Appellant in Person

S Bicknell and K Courteney for Respondent

Judgment:

17 May 2019

JUDGMENT OF MANDER J

[1] The appellant, Mr Graeme Horner, pleaded guilty to a charge of assault with intent to injure and was sentenced to four months’ home detention, 150 hours’ community work and judicial monitoring.

[2] The offending occurred when Mr Horner was visiting a friend one evening. The victim was a neighbour. He knocked on the door and asked him to keep noise levels down. Abuse was traded before Mr Horner picked up a pool cue and jabbed the victim a number of times in the torso area causing the victim to fall. Mr Horner then straddled the victim on the ground and pinned him down with the pool cue across his chest before punching him three to four times in the face.

[3] The victim received bruising to his chest and stomach and had several patches of broken skin, a cut lip and a bleeding nose as a result of the assault.

HORNER v R [2019] NZHC 1091 [17 May 2019]

[4] Mr Horner told attending officers that the victim needed medical help and explained that he gave him a couple of jabs with the pool cue. He admitted having given the victim “some good whacks to the face” and told the police the victim would need a doctor. Mr Horner was clearly upset when he was being handcuffed. He said that he should have killed him.

[5] Mr Horner was originally charged with assault with a weapon and common assault, but when the charges were amended to the single charge of assault with intent to injure on the morning of trial, he pleaded guilty. Notwithstanding the entry of his plea, Mr Horner filed an appeal, and, on 1 May, Mr Horner presented oral submissions traversing the grounds upon which he relied. Mr Horner disputed a number of factual details upon which Judge Garland proceeded to sentence him and made complaints about his counsel who represented him before the District Court.

[6] In regard to the latter issue, I outlined the process required to be undertaken to advance an appeal based on an allegation of incompetent counsel. I also engaged with him regarding the particulars upon which the Court proceeded to sentence him, which he disputed. I canvassed these matters in a minute that I issued after adjourning the appeal in order to allow Mr Horner the opportunity to consider how he would like to proceed. I now set out the content of that minute in full as it largely deals with the issues he raised:1
[1] Mr Horner was sentenced by Judge Garland to four months home detention, 150 hours community work, and judicial monitoring after he pleaded guilty to a reduced charge of assault…

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 Horner v The Queen

Details

AGLC: Horner v The Queen [2019] NZHC 1091
Case: [2019] NZHC 1091
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of Horner v The Queen involved an appeal by the appellant, Graeme Hirst Horner, against his conviction and sentence for assault with intent to injure. Horner had pleaded guilty to the charge and was sentenced to four months’ home detention, 150 hours’ community work and judicial monitoring. The sentencing judge, Judge Garland, had accepted a starting point of 12 months’ imprisonment for the offence, but commuted the sentence to one of home detention due to Horner’s age and limited history of violence. Horner filed an appeal against his sentence, challenging certain factual details upon which the sentence was based and raising complaints about his previous counsel, Mr Eason. Horner argued that his counsel had failed to inform the Court that he had considered himself to be in danger during the incident and had not discussed the potential defence of self-defence with him. The appeal was heard on 1 May, and the Court provided Horner with the opportunity to obtain legal advice about vacating his plea on the basis of his complaints regarding the standard of advice and representation he had received in the District Court. The Court adjourned the appeal to 16 May at 10 am for Horner to clarify his position regarding the appeal.
Horner did not wish to pursue the appeal on the basis of the performance of his lawyer, and the Court proceeded to deal with the appeal on the basis of the submissions Horner made on 1 May. The Court reviewed the factual issues which caused Horner concern and expressed provisional views regarding the narrative on which Judge Garland proceeded to sentence him. The Court concluded that the outcome of the factual disputes raised by Horner would have made no material difference to the approach taken to the sentencing exercise, and in particular to the type or length of sentence imposed. The Court also noted that the sentence arrived at could, for a variety of reasons, be considered generous, and that it did not consider the sentence ultimately imposed was manifestly excessive. The appeal was dismissed.

The court's reasoning and outcome in this case highlight the importance of ensuring that a defendant receives competent legal representation and that their rights are properly protected throughout the criminal justice process. In this case, Horner's complaints about his previous counsel did not provide a sufficient basis for the Court to vacate his guilty plea or to overturn his sentence. The Court found that the sentence imposed was appropriate and proportionate to the offending, and that there were no significant factual disputes that would have affected the outcome of the sentencing exercise. This case serves as a reminder that appeals against sentence are not an opportunity for a defendant to relitigate the facts of the case or to challenge the conviction itself, but rather to ensure that the sentence imposed was lawful, reasonable and proportionate to the offending.

Orders