James v The Queen - [2020] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-188

[2020] NZHC 2134

BETWEEN
DANIEL RANDALL JAMES

Appellant

AND

THE QUEEN

Respondent

Hearing: 3 August 2020

Counsel:

A M Cameron for Appellant D B Dow for Respondent

Judgment:

21 August 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 21 August 2020 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

JAMES v R [2020] NZHC 2134 [21 August 2020]

Introduction

[1] On 28 May 2020, Judge BA Gibson sentenced Mr James to 35 months’ imprisonment.1 Mr James now appeals that sentence contending it is manifestly excessive. The sole issue on the appeal is whether Judge Gibson erred in declining to give a discount for the matters discussed in a cultural report put forward under s 27 of the Sentencing Act 2002 such that a lesser sentence should be imposed.

Background

[2] Mr James was sentenced on five charges. They were unlawfully taking a motor vehicle2, burglary of commercial premises3 ($7,000 of goods being taken), failing to stop4, endangering transport5 and reckless driving.6

[3] The facts, in brief, are that Mr James took a motor vehicle which he used in the burglary of commercial premises from which $7,000 of goods were taken. Later, he failed to stop for police and fled in the stolen vehicle. Mr James, in an effort to escape from the police, drove onto the State Highway 16 motorway and travelled the wrong way towards oncoming traffic. Cars on the offramp and motorway took evasive action to avoid colliding with the vehicle driven by Mr James. Fortunately, there was no accident. The charges of endangering transport and reckless driving arise from this narrative.

[4] Mr James was 40 years old at the time of the offending. As a young man aged from 16 to 22 years he acquired a considerable criminal record centred around driving and dishonesty offences. However, he then ceased offending for a period of about 15 years (if a 2009 conviction for resisting police, for which he was directed to come up for sentence if called upon, is disregarded). This coincided with Mr James entering into a long-term relationship and becoming a father.

1      R v James [2020] NZDC 9618.
2      Crimes Act 1961, s 226(1). Maximum sentence of 7 years’ imprisonment.
3      Section 231. Maximum sentence of 10 years’ imprisonment.
4      Land Transport Act 1998, s 52A. Maximum penalty of $10,000 fine.
5      Crimes Act 1961, s 270(1)(a). Maximum sentence of 14 years’ imprisonment.
6      Land Transport Act 1998, s 35(1)(a). Maximum sentence of 3 months’ imprisonment or $4,500 fine.

[5] The offending for which Mr James was sentenced by Judge Gibson occurred shortly after Mr James’s relationship with his partner broke down and the two separated. Mr James, who had been employed during the period when he was not offending, left his employment when his marriage broke up. He chose not to apply for a benefit but to…

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 James v The Queen

Details

AGLC: James v The Queen [2020] NZHC 2134
Case: [2020] NZHC 2134
Decision Date: 21 August 2020

CaseChat Overview and Summary

Daniel Randall James appeals his sentence of 35 months’ imprisonment on the basis that it is manifestly excessive. The sole issue on appeal is whether Judge Gibson erred in declining to give a discount for the matters discussed in a cultural report under s 27 of the Sentencing Act 2002, such that a lesser sentence should be imposed. The cultural report considered Mr James’s childhood experiences and how they may have influenced his offending. The appeal court found that while the cultural report was persuasive, the appropriate discount would only be small, around the five per cent mark, as Mr James was capable of living crime-free and moving past his difficult upbringing. The appeal court did not find that the sentence was manifestly excessive and dismissed the appeal.

This case highlights the importance of considering an offender’s background and cultural context in sentencing, particularly in cases where there is systemic deprivation. However, the court must also consider the offender’s capacity to avoid offending and the seriousness of the offending. In this case, the court found that while Mr James’s background was important context to his offending, the appropriate discount was small as he was capable of living crime-free for the majority of his adult years. The court emphasised the need for a causative link between an offender’s background and their offending to award a discount.

Orders