Lusty v R - [2012] NZCA 275

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/2012
[2012] NZCA 275

BETWEEN CHRISTOPHER JOHN LUSTY
Appellant

AND THE QUEEN
Respondent

Hearing: 18 June 2012

Court: Glazebrook, Fogarty and Allan JJ

Counsel: A R Laurenson for Appellant
P D Marshall for Respondent

Judgment: 27 June 2012 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
___________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

The appellant was sentenced at the New Plymouth District Court (by Judge Roberts) on 13 January 2012 to a total of 18 months’ imprisonment in relation to two charges of male assaults female and one charge of threatening to kill, all of which arose out of the same incident.[1] He had previously pleaded guilty to a charge of breach of a protection order arising from the same incident and in that respect had served one month’s imprisonment.

The incident

[1]R v Lusty DC New Plymouth CRI-2011-043-1212, 13 January 2012.

At about 12.30 am on 13 April 2011, the appellant and the victim were at his home address. About a year before, a full protection order had been issued by the New Plymouth District Court, protecting the victim against the appellant. The couple had resumed living together. They were arguing, and the argument escalated when the appellant turned physical, pushing the victim off the bed and onto the floor. As she stood up he grabbed her and forced her down on the bed, using one of his arms to hold her there, and held the other arm across her throat restricting her airway. She attempted to break free, but he grabbed her hair and started pounding her head into the bed numerous times.
She managed to struggle free and tried to leave the room when he grabbed her a second time, with both hands, pushing her up against the wall, and started to punch her on or about her face. Letting her go from the hold, he then told her he “was going to kill her and make her life hell”. She then escaped to a nearby neighbour’s address. She suffered bruises to both her arms, her head, and soreness to her jaw.

Amendment of charges prior to guilty plea

The appellant was originally charged with: breaching a protection order; threatening to kill; and, thirdly, injuring with intent to cause grievous bodily harm. He entered a plea of guilty to the breach of the protection order charge and was sentenced to one month’s imprisonment and was committed to trial on the other two charges. The next step was that the Crown dropped the grievous bodily harm count and filed an indictment containing four counts of male assaults female and one count of threatening to kill. This was in July 2011. There were further discussions between counsel, and as a result the assault aspects of the incident were reduced to two counts of male assaults female. The count of threatening to kill remained. The appellant then entered pleas of guilty in relation…

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 Lusty v R

Details

AGLC: Lusty v R [2012] NZCA 275
Case: [2012] NZCA 275
Decision Date: 27 June 2012

CaseChat Overview and Summary

The case of Lusty v R is an appeal against sentence brought before the Court of Appeal of New Zealand. The appellant, Christopher John Lusty, was sentenced by the New Plymouth District Court to a total of 18 months' imprisonment for two counts of male assaults female and one count of threatening to kill, all arising from the same incident. The appellant had previously pleaded guilty to a charge of breach of a protection order related to the same incident, for which he served one month's imprisonment. The appeal was heard by Glazebrook, Fogarty, and Allan JJ, with A R Laurenson representing the appellant and P D Marshall representing the respondent. The court dismissed the appeal against sentence on 27 June 2012.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the New Plymouth District Court was appropriate, particularly in light of the appellant's criminal history, the nature of the offending, and the various factors considered by the sentencing judge. The appeal focused on the discount for the appellant's guilty plea and the consideration of the one month already served for the breach of the protection order. The appellant argued that the ten per cent reduction for the guilty plea was insufficient and should have been 15 per cent. The appellant's counsel also contended that the earlier one-month sentence for the breach of the protection order should have been taken into account further, potentially reducing the overall sentence. Additionally, the appellant's counsel submitted that the appellant had shown remorse and insight into his offending, warranting an additional discount. However, the Court of Appeal found that the sentencing judge had appropriately considered these factors and that the overall sentence was appropriate.

In dismissing the appeal, the Court of Appeal found that the appellant's argument regarding the ten per cent reduction for the guilty plea was unpersuasive. The court held that the discount given by the sentencing judge was within the appropriate range and did not warrant disturbance. The court also noted that the earlier one-month sentence for the breach of the protection order could only have reduced the sentence by one month, which was not significant in the context of the total 18-month sentence. Finally, the court found that there was ample material to support the sentencing judge's decision to make no additional discount for remorse, as the pre-sentence report indicated the appellant showed little insight into his offending. The court concluded that the appellant had not made out an argument for disturbing the sentence imposed in the District Court.

The appeal against sentence was dismissed, and the original sentence of 18 months' imprisonment was upheld.

Orders