Kincaid v R - [2010] NZCA 384

IN THE COURT OF APPEAL OF NEW ZEALAND
CA389/2010
[2010] NZCA 384
BETWEENSTEPHEN MARK KINCAID

Appellant

ANDTHE QUEEN

Respondent

Hearing:12 August 2010

Court:Chambers, Rodney Hansen and Heath JJ
Counsel:K L McHugh for Appellant

T Epati for Respondent

Judgment:18 August 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
The appeal
[1]        On 28 May 2010, in the District Court at Christchurch, Mr Kincaid was sentenced to a term of imprisonment of 18 months. He appeals, on the grounds that the sentence was manifestly excessive or inappropriate. Primarily, Mr Kincaid contends that a sentence of home detention should have been passed.
The facts
[2]        Mr Kincaid has a business interest in a strip club in Christchurch, known as The Dolls House. He is also involved in its management.
[3]        At about 7am on Friday 10 July 2009, while working at the business premises, Mr Kincaid noticed the complainant on a balcony at the rear entrance to the establishment. When seen by Mr Kincaid, the complainant was picking up cigarette butts from the ground. The complainant could only have accessed the balcony by climbing up a large gate. Mr Kincaid went outside to the balcony area to confront him. There had been an unlawful entry onto the property the previous week that had resulted in significant physical damage and economic loss to the business.
[4]        Mr Kincaid grabbed the complainant, striking him a number of times. He dragged the victim inside the Dolls House, through the rear door, where the assault continued. He continued to strike the victim about the head and body, at one stage throwing the complainant “to the ground”. Mr Kincaid kicked the complainant, while he was down. At one stage, he used both of his feet, in a jumping motion, to stomp on the complainant (on Mr Kincaid’s view) in the region of the upper torso. When the complainant managed to get to his feet, Mr Kincaid continued to assault him.
[5]        Subsequently, the complainant is said to have fallen from the balcony. It seems likely that facial fractures requiring surgery resulted from that fall. There is no evidence to suggest that Mr Kincaid pushed the complainant off the balcony. However, at the time of the fall, Mr Kincaid accepts that he was not far away from the complainant. We infer that he was pursuing him.
[6]        As a result of what occurred during this incident, the complainant lost sight in one eye and sustained skull fractures. At sentencing, the Crown acknowledged that the extent and seriousness of the facial and skull injuries were likely to have been caused by the complainant’s fall from the balcony. It has proved impossible to assess what injuries were suffered directly as a result of the assault.
[7]        Mr Kincaid told the Police that he had assaulted the victim to prevent him from committing a burglary and “was just trying to hold him at the premises so the…

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 Kincaid v R

Details

AGLC: Kincaid v R [2010] NZCA 384
Case: [2010] NZCA 384
Decision Date: 18 August 2010

CaseChat Overview and Summary

The appeal was brought by Stephen Mark Kincaid against his sentence of 18 months imprisonment imposed by the District Court at Christchurch. Kincaid argued that the sentence was manifestly excessive or inappropriate and that a sentence of home detention should have been imposed instead. Kincaid, who has a business interest in a strip club in Christchurch, assaulted a complainant who was seen picking up cigarette butts from the ground at the rear entrance of the establishment. The assault was recorded on CCTV and showed a prolonged and severe beating of an intoxicated man who showed no inclination to defend himself or resist Kincaid's attack. The complainant suffered serious injuries, including losing sight in one eye and sustaining skull fractures, though it was unclear what injuries were directly caused by the assault.

The Court of Appeal considered Kincaid's appeal on the grounds that the sentence was manifestly excessive or inappropriate and that the District Court judge had erred in not considering home detention as a viable sentencing option. The Court found that the assault was gratuitous violence of a serious nature that led to the complainant suffering serious injury, and the sentence imposed was available to the judge. The Court also found that the criticism of the judge's approach to the option of home detention was misplaced, as the judge had considered the hierarchy of sentences and the need for the court to satisfy itself that a sentence of imprisonment was required to meet specified sentencing goals. The Court concluded that the offending was too serious to be marked by a sentence short of imprisonment, and the appeal was dismissed.

Orders