Nathan v The Queen - [2017] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/2016
[2017] NZCA 18

BETWEEN	DWAYNE ROBERT MANUERA NATHAN Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2017
Court:	Miller, Mallon and Peters JJ
Counsel:	E J Forster for the Appellant M H Cooke for the Respondent
Judgment:	21 February 2017 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is dismissed.
BThe appeal against the minimum period of imprisonment is dismissed.

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REASONS OF THE COURT

(Given by Mallon J)

Mr Nathan was convicted of burglary,[1] theft,[2] two charges of intentionally causing intentionally grievous bodily harm and one charge of wounding with intent to cause grievous bodily harm following a jury trial before Judge Adeane in the Gisborne District Court.[3] He was sentenced to 13 years imprisonment with a minimum period of imprisonment of six years.[4] He appeals against his sentence on the grounds that provocation or the victim’s conduct justified a reduction. He also appeals against the minimum period of imprisonment.

The offending

[1]Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years imprisonment).

[2]Sections 219 and 223(b) (maximum penalty seven years imprisonment).

[3]Section 188(1) (maximum penalty 14 years imprisonment).

[4]R v Nathan [2016] NZDC 7462.

On 19 September 2014 Mr Nathan and a co-offender broke into the garage of an 88-year-old woman who lived alone in Opotiki. They took a car, valued at $20,000, and some other items from the garage. Mr Nathan, his co-offender, and a third person, drove to Gisborne to try to sell the stolen car. They went to an address where they believed a friend lived, thinking the friend would be willing to buy the car. They arrived at the address at about 2.30 am.
There was a group at the address who were up socialising. They told Mr Nathan’s group that the person they were looking for did not live at the address and they were to leave the address. One of Mr Nathan’s group asked the group at the house if they wanted to buy the car. The exchange became heated. Mr Nathan’s group was again told to leave. Mr Nathan’s group returned to the vehicle and began reversing down the driveway. A young woman, who was amongst those socialising at the house, threw a metal baseball bat at the car. The bat landed on the driveway.
Mr Nathan stopped the car, got out and picked up the baseball bat. He approached the woman and hit her in the face with the baseball bat. She was knocked out and fell to the ground. Another person from the group at the house, a man aged 54, sought to assist the woman. Mr Nathan hit this man in the head with the baseball bat. The man fell face down unconscious into a garden. A third person from the group at the house, a man aged 37, also sought to assist. Mr Nathan struck this man repeatedly on the head and body with the baseball bat. Mr Nathan’s group then left the property. They…

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 Nathan v The Queen

Details

AGLC: Nathan v The Queen [2017] NZCA 18
Case: [2017] NZCA 18
Decision Date: 21 February 2017 at 3.30 pm

CaseChat Overview and Summary

Dwayne Robert Manuera Nathan appeals against his conviction and sentence on several grounds. The appeal against the conviction has been dismissed by the Court, and thus, the focus of this summary will be on the appeal against the sentence and the minimum period of imprisonment. Mr Nathan was convicted of burglary, theft, and multiple charges of causing grievous bodily harm. He was sentenced to 13 years imprisonment with a minimum period of imprisonment of six years. The Court of Appeal was tasked with determining whether the sentence and the minimum period of imprisonment were appropriate given the circumstances of the case. The Court found that the appellant's argument that the victims' conduct justified a reduction in sentence was unconvincing, as the alleged provocative conduct was minor and did not pose any danger to the appellant's group. The Court further found that the District Court Judge was correct to impose a minimum period of imprisonment for the purposes of denunciation and deterrence, as the offending was egregious and involved extreme violence, use of a dangerous weapon, and attacks to the head resulting in serious injuries. The appeal against the sentence and the minimum period of imprisonment was dismissed. This case highlights the importance of proportionality and the need for a sentence to reflect the gravity of the offending and to serve the purposes of denunciation and deterrence.

Orders