Jones v R - [2012] NZCA 73

IN THE COURT OF APPEAL OF NEW ZEALAND

CA788/2011
[2012] NZCA 74

BETWEEN CASEY JOHN WALSH
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: J A Westgate for Appellant
C A Brook for Respondent

Judgment: 8 March 2012 at 10 a.m.

JUDGMENT OF THE COURT

A Leave to appeal sentence out of time is granted.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Walsh pleaded guilty to one count of injuring with intent to injure. The charge stemmed from a group assault on a young man in a city street. Mr Walsh was sentenced to a term of imprisonment of one year, 11 months.[1] The sole issue on appeal is the rejection by the sentencing Judge, Judge MacAskill, of a sentence of home detention. A brief period of delay in filing the appeal is not of concern and leave to appeal out of time is granted, unopposed.

Facts

[1] R v Walsh DC Dunedin CRI 2011‑012‑055, 21 October 2011.

The offending occurred near the Octagon in Dunedin. The victim and his fiancée were walking down a street. A group of drunken young men, including Mr Walsh, were approaching from the opposite direction. Mr Walsh flicked his hand into the victim’s face as they went by. The victim called him a name. This inflamed Mr Walsh who ran at him, fist raised. The victim ducked and Mr Walsh, obviously very intoxicated, tripped.
As Mr Walsh got up, a co‑offender hit the victim with a heavy punch, causing him to fall to the ground motionless. Mr Walsh then resumed his activity, punching the victim as he lay on the ground. There were four to six blows to the head area. Eventually his companions pulled Mr Walsh off and they ran away.
The victim was hospitalised for five days. He suffered a broken jaw and nose, swelling to his face and mouth and cuts in those locations requiring stitches. His grandfather visited him in hospital and described him as barely recognisable.
The assault has had physical, emotional and practical implications for the victim. Physically he suffered on‑going difficulties. Although the physiological impact (moderate brain injury) has now healed, the psychological consequences have continued to trouble him. Anxiety led to what loosely could be termed severe panic reactions to situations. The victim is learning coping mechanisms and things are improving.
Both he and his fiancée are troubled about going out. It seems the victim’s distress over the situation and his resultant psychological problems, as well as an inability to sleep, have brought about a hopefully transient personality change whereby he is irritable and unable to cope with their two young children. The couple’s relationship is under strain. There have inevitably been financial costs, especially in the early stages with the victim hospitalised and his fiancée having two young children to manage (the children were aged two years and five weeks at the time).
We have set…

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 74
Case: [2012] NZCA 73
Decision Date: 8 March 2012

CaseChat Overview and Summary

The case of Jones v R involved Casey John Walsh, who was appealing his sentence for injuring with intent to injure. Walsh was part of a group assault on a young man in a city street. The victim suffered severe injuries, including a broken jaw and nose, and required hospitalization for five days. Walsh was sentenced to one year and eleven months in prison. The primary issue on appeal was the rejection of a sentence of home detention by the sentencing judge, Judge MacAskill.

The legal issue before the Court of Appeal of New Zealand was whether the sentencing judge erred in not considering Walsh's personal mitigating factors, such as his remorse and offer to make amends, when rejecting a sentence of home detention. The Court considered whether the judge had exercised his discretion properly in balancing these mitigating factors against the seriousness of the offending. The Court noted that while the sentencing judge had considered Walsh's favourable personal factors when fixing the lead sentence, it was open to him to conclude that the circumstances and seriousness of the offending were the predominant consideration in setting the type of sentence. The Court held that the judge was not obliged to regard Walsh's personal mitigating factors as outweighing the need to impose a sentence that clearly condemned the conduct involved.

The Court of Appeal found that the sentencing judge had properly exercised his discretion in rejecting a sentence of home detention. The Court agreed that the unprovoked violence and its severe consequences for the victim justified a denunciatory approach. The judge was within his discretion to conclude that a sentence of home detention would not adequately achieve the necessary denunciation of the conduct. The appeal was dismissed, and leave to appeal out of time was granted due to a brief delay in filing the appeal.

Orders