Joblin v R - [2011] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

CA502/2011
[2011] NZCA 585

BETWEEN CARL ISAAC JOBLIN
Appellant

AND THE QUEEN
Respondent

Hearing: 9 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: P B McMenamin for Appellant
J E Mildenhall for Respondent

Judgment: 21 November 2011 at 2.30 pm

JUDGMENT OF THE COURT

Order made extending the time for appeal but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

The appellant was sentenced to an effective term of two years seven months imprisonment for his leading role in violent offending in which the victim was detained, beaten and subjected to threats and extortion. He appeals his sentence, saying that the starting point was too high and insufficient discount was given for mitigating factors. In the result, he says, his sentence was too long relative to that of the other principal offender, Raymond Richard Keenan, who had pleaded guilty to additional charges arising from the same incident yet was sentenced to two years four months imprisonment.
There were four offenders, the other two being female associates (Sarrah Kylie Floyd and Stephanie Jane McGrath) of Mr Joblin and Mr Keenan. Mr Keenan was sentenced in June 2010 after a sentencing indication.[1] The other offenders all pleaded guilty on the second day of their trial after the Crown had abandoned some of the charges to which Mr Keenan had pleaded guilty. They were sentenced together on 16 December 2010.[2]

The facts

[1] R v Keenan DC Timaru CRI-2009-009-14999, 9 June 2010.

[2] R v Joblin DC Christchurch CRI-2009-009-14999, 16 December 2010.

In September 2009 the victim associated with the offenders several times. He would buy them alcohol and cigarettes. On 27 September they chose to attack him, apparently for monetary gain. Judge Callaghan’s summary of the incident is not controversial:
[11] For the complainant things started off innocently enough at your flat Miss McGrath. You all went with him so he could fill up his car and then he drove you initially to Dunsandel. It would be inappropriate for me not to take into account that following the initial trip in the car to the service station he, in my assessment of the summary of facts and all the information I have had, was not effectively free to leave. While he was not illegally detained, and I mean whilst you are not guilty of kidnapping him at the earlier point, in my assessment he was in de facto detention because he was not free to leave but of course the kidnapping or the unlawful detention charge does not arise until he tried to escape.
[12] You went to Dunsandel and then to Rakaia. He went into the Rakaia Service Station and this was after Mr Joblin had assaulted him somewhere in the Dunsandel region on the way there. He was told to go in to buy cigarettes. His transaction was declined and then you went on to Ashburton and he was told to drive to the…

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 Joblin v R

Details

AGLC: Joblin v R [2011] NZCA 585
Case: [2011] NZCA 585
Decision Date: 21 November 2011

CaseChat Overview and Summary

In Joblin v R, the appellant, Carl Isaac Joblin, appealed against his sentence for his role in violent offending, which included the detention, beating, and extortion of a victim. Joblin argued that the starting point for his sentence was too high and that insufficient discount was given for mitigating factors, resulting in a sentence that was too long compared to the sentence of Raymond Richard Keenan, who was sentenced to two years and four months imprisonment for his involvement in the same incident. The court had to determine whether the starting point for Joblin’s sentence was appropriate and whether the discount for mitigating factors was adequately considered.

The court found that the Judge correctly assessed the criminality of each offender and made an overall assessment of the events. The starting point for Joblin's sentence was lower than that for Keenan, reflecting the reduction in charges and the lesser severity of some of the offences. The court also found that the Judge appropriately considered the mitigating factors, including Joblin's remorse and guilty pleas, although it was noted that Keenan’s remorse was more deeply felt and demonstrated. The court concluded that the sentence was not manifestly excessive and that the appeal was without merit. The appeal was dismissed, but an order was made to extend the time for appealing due to the delay in filing the notice of appeal.

Orders