Joe v R - [2019] NZCA 394

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA672/2018
[2019] NZCA 394

BETWEEN	PHILLIP RICHARD JOE Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2019 (Further submissions received on 21 August 2019)
Court:	French, Mallon and Moore JJ
Counsel:	A J Bailey for Appellant M N Zarifeh and S J Mallett for Respondent
Judgment:	29 August 2019 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

On 20 July 2018, in the District Court at Nelson, a jury found Phillip Richard Joe guilty of four charges arising out of events on 28 February 2017 and 13 May 2017.
The charges were:
(a)male assaults female (x 2);[1]
(b)kidnapping;[2] and
(c)threatening to do grievous bodily harm.[3]
[1]Crimes Act 1961, s 194(b); the maximum penalty is two years’ imprisonment.
[2]Section 209; the maximum penalty is 14 years’ imprisonment.
[3]Section 306(1)(a); the maximum penalty is seven years’ imprisonment.
On 18 July 2018, the morning his trial commenced, Mr Joe pleaded guilty to driving while disqualified.[4] On appeal, there was some dispute as to whether this charge was in its aggravated form, that is driving whilst disqualified (third or subsequent)[5] or a charge of driving while disqualified simpliciter.[6] We address that issue more fully below.
[4]Land Transport Act 1998, s 32(1)(a).
[5]Section 32(4); the maximum penalty is two years’ imprisonment or a fine of $6,000.
[6]Section 32(3); the maximum penalty is three months’ imprisonment or a fine of $4,500.
On 19 September 2018 Judge S J O’Driscoll sentenced Mr Joe to a term of four years and six months’ imprisonment.[7] He also disqualified Mr Joe from holding or obtaining a driver’s license for a period of 18 months.
[7]R v Joe [2018] NZDC 22723.
Mr Joe now appeals his sentence.

The offending

Mr Joe was in an intermittent relationship with the victim, R, for approximately 18 months. The offending against R related to two separate events occurring on 28 February 2017 and 13 May 2017.

Male assaults female – 28 February 2017

That morning R was asleep on a couch at her home. Mr Joe entered without R knowing. She woke up to find him there. Quite what led Mr Joe to assault R is unclear, but he picked her up by the arms and legs “… like a baby …” and dropped her onto a coffee table. She ended up on the floor between the coffee table and the couch. The assault aggravated a pre-existing back condition.
The jury acquitted Mr Joe of three other related charges connected to the events of this day.

Kidnapping – male assaults female, threatening to do grievous bodily harm and driving whilst disqualified – 13 May 2017

Mr Joe faced 10 charges relating to the events on 13 May 2017. He was convicted of the three referred to above. The Judge discharged him on one charge, he pleaded guilty to the driving charge and the jury acquitted him on…

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 Joe v R

Details

AGLC: Joe v R [2019] NZCA 394
Case: [2019] NZCA 394
Decision Date: 29 August 2019 at 11.30 am

CaseChat Overview and Summary

Phillip Richard Joe appeals his sentence for four convictions arising from two separate incidents involving the victim, R. The appeal concerns the severity of the sentence and whether it was excessive. The District Court Judge had sentenced Mr Joe to four years and six months' imprisonment for the convictions. The Court of Appeal was asked to consider whether the sentence was excessive and whether the sentence for disqualified driving exceeded the maximum penalty. The appellant submitted that the starting point of three years for the kidnapping and related charges was too high. He also argued that the sentence for disqualified driving exceeded the maximum penalty and was excessive. The Court of Appeal found that the starting point of three years for the kidnapping and related charges was appropriate and that the sentence for disqualified driving did not exceed the maximum penalty and was not excessive. The Court of Appeal dismissed the appeal.

Orders