AThe application for an extension of time to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of four years and seven months imprisonment is quashed. A sentence of four years and two months imprisonment is substituted on count 1 (CRN 9009021242, burglary). Sentences of two years and six months imprisonment are substituted on the other two counts, each to be served concurrently.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

Craig Jones, the appellant, was found guilty after trial of two charges of burglary of two homes in Christchurch. He pleaded guilty to another charge of burglary, involving a third home, at a status hearing before the trial. The appellant was sentenced on 2 September 2010 by the trial judge, Judge Farish, to a term of four years and seven months imprisonment.[1] He appeals against his sentence on the basis it is manifestly excessive. The focus of the appeal is on the starting point of five years imprisonment adopted by the Judge.
[1] R v Jones DC Christchurch CRI-2009-009-18524, 2 September 2010.
The appellant also seeks an extension of time to appeal as the appeal was not filed until February 2012, about seventeen months after sentence.

Background

The first of the three burglaries took place in early July 2009. The appellant entered a flat in central Christchurch. He took alcohol, medicine and electronic devices valued at more than $2,000 from the property. The appellant pleaded guilty to this charge.
The second of the burglaries took place about three months later, on 17 October 2009.[2] The appellant broke into a house and took a large amount of jewellery. The jewellery had an estimated value of $34,000.
[2] This is count 1 on the indictment. The charge on the first of the burglaries was laid summarily.
Finally, on 23 November 2009, the appellant broke into another house. On this occasion, little was taken but the appellant broke a large amount of glass to obtain access.
The appellant was convicted after trial in relation to the latter two burglaries.

The sentencing remarks

In sentencing the appellant, Judge Farish placed weight on the impact of the latter two burglaries on the victims. Although acknowledging the need for rehabilitation, the Judge considered that the appellant’s recidivism was such that the principal purpose of sentencing was the safety of the community. Judge Farish also saw a long term of imprisonment as giving the appellant time to get on top of his drug addiction.
With those factors in mind, the Judge approached the starting point. She began with a starting point of two years imprisonment for the burglary involving the jewellery theft in October, which was…

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 Jones v R

Details

AGLC: Jones v R [2012] NZCA 273
Case: [2012] NZCA 273
Decision Date: 26 June 2012

CaseChat Overview and Summary

Craig Kenneth Jones, the appellant, appealed against his sentence for three burglaries, arguing that the sentence imposed by Judge Farish was manifestly excessive. The appellant was convicted of two burglaries after trial and pleaded guilty to a third. The trial judge sentenced the appellant to a total of four years and seven months imprisonment, with sentences on the three counts to be served concurrently. The appellant applied for an extension of time to appeal as the appeal was not filed until February 2012, about seventeen months after sentence. The primary issue before the Court of Appeal was whether the sentence imposed was manifestly excessive. The Court agreed that a stern sentence was appropriate, given the appellant's lengthy criminal history and failure to address his drug addiction. However, the Court concluded that the sentence imposed was manifestly excessive due to the high uplift of two years for personal aggravating features. The Court substituted a sentence of four years and two months imprisonment on the first count and sentences of two years and six months imprisonment on the other two counts, each to be served concurrently. The Court granted the application for an extension of time to appeal.

Orders