[1] In June 2009 the appellant pleaded guilty on arraignment to seven of the 12 counts he faced in the Palmerston North District Court.[1]
[1] R v Jones DC Palmerston North CRI-2008-054-1155, 16 June 2009.
[2] His trial then proceeded on the other five counts, the most serious of which was kidnapping. The jury acquitted the appellant.
[3] In October 2009 Judge Garland sentenced him on the seven charges for which he had been convicted.[2] These were the four charges of assault laid under s 196 of the Crimes Act 1961; one charge of assault with a weapon laid under s 202C(1)(a); a charge of unlawful possession of a firearm laid under s 45(1)(b) of the Arms Act 1983; and a charge of cultivating cannabis laid under the Misuse of Drugs Act 1975.
[2] R v Jones DC Palmerston North CRI-2008-054-1155, 30 October 2009.
[4] The cannabis cultivation charge attracted the lead sentence of three and a half years’ imprisonment. The Arms Act charge was visited with a cumulative sentence of one year’s imprisonment. The four assault charges and the charge of assault with a weapon attracted concurrent sentences of one month’s imprisonment each.
[5] This appeal challenges the four and a half year term on the ground that it is manifestly excessive.
Background
[6] The appellant’s offending took place in the early hours of a Saturday morning in March 2008, 15 months before his trial and his pleas, in and around the appellant’s rural property near Pahiatua. His victims were four youths, all aged 15 at the time, who were school contemporaries of the appellant’s son.
[7] The four victims had heard the appellant cultivated cannabis on his property and resolved to travel there to take some of it. They stopped their car, walked across paddocks to a shed where cannabis plant and associated cultivation equipment was housed, helped themselves to some plants, and walked back to their car. Noticing lights at the appellant’s home they drove away but were pursued by a vehicle driven by the appellant. They lost control at a corner and crashed into a paddock.
[8] On getting out of the car they encountered the appellant holding a .308 rifle which he pointed at them as they attempted to flee. The appellant threatened to shoot them if they did not return to the car. On realising that he was dealing with four of his son’s school friends the appellant lowered the rifle and offered to help them extricate their car. The youths got into the appellant’s vehicle, whereupon he drove to his home, hitting one of the victims as he did so. On arriving at…
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.
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Details
AGLC
Jones v The Queen [2010] NZCA 119
Case
[2010] NZCA 119
Decision Date
CaseChat Overview and Summary
The appellant, Colin Trevor Jones, appealed against the sentence imposed on him by Judge Garland in the Palmerston North District Court. The appeal challenged the four and a half year term on the ground that it was manifestly excessive. The appellant was convicted on seven charges, including assault, assault with a weapon, unlawful possession of a firearm, and cultivating cannabis. The cannabis cultivation charge attracted the lead sentence of three and a half years’ imprisonment. The other charges attracted concurrent sentences of one month’s imprisonment each.
The legal issues before the Court of Appeal were whether the four and a half year term of imprisonment was manifestly excessive, whether the mitigating factor of the guilty pleas was given sufficient credit, and whether the judge gave excessive weight to the appellant's previous convictions. The Court of Appeal considered whether the judge erred in applying the ten per cent mitigating reduction before reducing the sentence to reflect totality, and whether the judge gave sufficient weight to the appellant's personal circumstances.
The Court of Appeal found that the judge erred in applying the ten per cent mitigating reduction before reducing the sentence to reflect totality. However, the Court of Appeal found that the error probably worked in the appellant's favour. The Court of Appeal found that the judge had closely followed the prescribed methodology and had correctly identified all relevant features. The Court of Appeal found that the appellant's previous convictions and the sustained nature of the assaults on the four young people were aggravating features. The Court of Appeal found that a discount of ten per cent was appropriate for the guilty pleas, despite the appellant's tactical approach in delaying entering guilty pleas. The Court of Appeal found that the end sentence was stern and at the top of the permissible range, but was not manifestly excessive.