Julian v R - [2012] NZCA 453

IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/2012
[2012] NZCA 453

BETWEEN BERNARD BOYD JULIAN
Appellant

AND THE QUEEN
Respondent

Hearing: 20 September 2012

Court: White, Simon France and Asher JJ

Counsel: A R Laurenson for Appellant
B C L Charmley for Respondent

Judgment: 2 October 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

This is a sentence appeal. Mr Julian had lost his job and believed a workmate to be responsible. One night he went to the workmate’s house, forced his way inside and set upon him. Two flatmates sought to intervene and were both injured. Mr Julian ultimately pleaded guilty to:

(a)burglary;
(b)wounding with intent to cause grievous bodily harm;
(c)injuring with intent to injure;
(d)assault with intent to injure.

Judge Roberts took a starting point of eight years’ imprisonment. After adjustments the final sentence was six years, ten months’ imprisonment.[1] Mr Julian appeals on the basis that the starting point was too high, and a discount of 15 per cent for the guilty plea was too low.

Fuller facts

[1] R v Julian DC New Plymouth CRI-2011‑021‑1161, 8 June 2012.

Mr Julian mistakenly believed his former colleague was responsible for him losing his job. He decided to visit him to extract revenge. Prior to going to the house, Mr Julian taped his fingers, and the palms of his hand, with masking tape.
On arrival Mr Julian disconnected the power to the house. This caused the victim to come outside to investigate. Seeing nothing, the victim started to return indoors. As he was closing the door Mr Julian pushed it into him. It connected with the victim’s head, causing a significant wound.
Mr Julian pressed on, forcing the victim back into the house. He continued to rain punches onto him, until the victim fell. At that point Mr Julian jumped on top, and continued to punch the head area.
A first flatmate intervened, trying to pull Mr Julian off. Mr Julian bit him in the leg. A second flatmate came to their aid. Mr Julian attempted to dissuade him by grabbing at his testicles. He missed, but ended up scratching the man’s midriff. Ultimately Mr Julian was restrained.

Sentences

Judge Roberts had earlier given a sentencing indication with a starting point of nine years. By the time it came back before him, a charge of aggravated burglary (possession of knife) had been reduced to burglary simpliciter. Whilst Mr Julian was in possession of a folding knife, he disputed knowing that or intending to use it. The Judge reflected the change in charges by altering the starting point to eight years. On this basis the Judge placed the offending as upper band two of R v Taueki.[2] The starting point embraced the culpability for all offending. For previous offending (specifically noted to include burglary and injuring with intent) a six month uplift was imposed. The Judge then had regard to…

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 Julian v R

Details

AGLC: Julian v R [2012] NZCA 453
Case: [2012] NZCA 453
Decision Date: 2 October 2012

CaseChat Overview and Summary

Bernard Boyd Julian, the appellant, brought an appeal against his sentence to the Court of Appeal of New Zealand. Julian had been found guilty of burglary, wounding with intent to cause grievous bodily harm, injuring with intent to injure, and assault with intent to injure. The respondent, The Queen, was represented by the Crown Law Office. The appeal focused on the appellant's contention that the starting point for the sentence was too high and that the discount for the guilty plea was too low. The appellant's counsel argued that the starting point should have been lower band two with a starting point of six to seven years, and that a guilty plea discount of at least 20 per cent should have been applied.

The court considered the arguments presented by both parties and examined the facts of the case. The court found that the offending was serious, pre-meditated, and intended to cause significant harm to the victims. The court rejected the argument that the starting point should have been lower, and concluded that the six-month uplift for previous offending was excessive, but that the discount given for remorse was generous. The court also found that the 15 per cent guilty plea discount was within the available exercise of discretion.

In conclusion, the Court of Appeal dismissed the appeal against sentence. The court upheld the sentence of six years and ten months' imprisonment, finding that the starting point and the guilty plea discount were appropriately applied in the circumstances. The appellant's appeal was therefore unsuccessful.

Orders