Leonard v The Queen - [2011] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/2011
[2011] NZCA 583

BETWEEN NICOLE TAWERA LEONARD
Appellant

AND THE QUEEN
Respondent

Hearing: 2 November 2011

Court: O'Regan P, Chisholm and Potter JJ

Counsel: C M Clews for Appellant
C A Brook for Respondent

Judgment: 18 November 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

After being found guilty of aggravated wounding by a jury in the Hamilton District Court, the appellant was sentenced by Judge Burnett to four years and three months imprisonment on that charge. A concurrent sentence of two years and three months was imposed for a burglary that arose out of the same events. The appellant had pleaded guilty to the burglary.
This is an appeal against sentence on the grounds that the sentence was manifestly excessive. It is alleged that the Judge made factual errors, failed to take into account the actions of the victim, and that there is a disparity between the sentence imposed on the appellant and the sentence imposed on her 15 year old female co-offender.

Facts

At about 11 pm on 16 March 2010 the appellant and her co-offender broke into the victim’s home in Hamilton. At the time the victim, his wife and daughter were asleep. Having been woken the victim went into the dining room where he found the appellant and her co-offender in the process of removing the laptop computer.
Each of the offenders then ran off in a different direction. The victim chased the appellant who tripped and fell. A tussle resulted during which the victim struck the appellant, not realising she was a woman. The victim then managed to grab the appellant’s handbag which he took back to his wife who had by then rung the police. The appellant followed the victim back and asked him for her handbag. He refused to give it back and said the police could sort it out.
Then the appellant called her friend for help and started to run away. As the appellant tried to climb a fence the victim pulled her back down. During a struggle that followed the appellant bit the victim on the arm and would not let go. The victim’s skin was ripped as he ultimately broke her hold. At this point the co-offender stabbed the victim in the back with a knife.
The appellant and the co-offender then ran off. Within a short time they were caught by neighbours and the police.
As a result of the incident the victim was briefly hospitalised and had to take time off work. He has scarring to his back and arm. Both the victim and his wife, who was heavily pregnant, are now fearful for their safety and the safety of their children.

The appellant

At the time of the offending the appellant was 22 years of age. She suffers from serious drug and alcohol addictions. Although her list of previous convictions is relatively brief, it…

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 Leonard v The Queen

Details

AGLC: Leonard v The Queen [2011] NZCA 583
Case: [2011] NZCA 583
Decision Date: 18 November 2011

CaseChat Overview and Summary

Nicole Tawera Leonard was found guilty of aggravated wounding and burglary by the Hamilton District Court, and subsequently appealed the four-and-a-half-year prison sentence imposed on the grounds that it was manifestly excessive. The Court of Appeal dismissed the appeal and held that the sentence was not manifestly excessive. The appeal was based on three grounds: the judge made factual errors during sentencing, the judge failed to consider the actions of the victim as a mitigating factor, and there was a disparity in the sentences imposed on Leonard and her co-offender. The Court of Appeal found that none of these arguments had merit. The Court found that the judge's factual errors, including the observation that Leonard's red and black clothing was recognisable as gang colours in the Waikato, were not significant enough to impact the sentence. The Court also found that the victim's actions did not mitigate Leonard's conduct, and that the disparity in sentences was not a reliable indicator of whether the sentence was excessive as the starting points for each offender were within the appropriate range. The appeal was dismissed and Leonard's sentence was upheld.

Orders