Norton v R - [2012] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA222/2012
[2012] NZCA 334

BETWEEN BROCK ROBERT NORTON
Appellant

AND THE QUEEN
Respondent

Hearing: 19 July 2012

Court: O'Regan P, Potter and MacKenzie JJ

Counsel: R M Gould for Appellant
P K Feltham for Crown

Judgment: 26 July 2012 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

The appellant, Mr Norton, and his co-accused, Mr Solomon, were found guilty after a District Court jury trial on one count of aggravated robbery. They were also charged with one count of wounding with intent to cause grievous bodily harm, but were acquitted on that charge. Mr Norton was sentenced by the sentencing Judge, Judge Davidson, to a term of imprisonment for three years and Mr Solomon was sentenced to a term of imprisonment for two and a half years.[1] Mr Norton appeals against the sentence imposed on him.

Issues on appeal

[1] R v Solomon and Norton DC Wellington CRI-2011-085-3131, 5 April 2012.

The issues on appeal are framed by the three grounds of appeal, which are:
(a)the starting point adopted by the Judge of two and a half years was too high;
(b)insufficient regard was paid to the appellant’s personal circumstances;
(c)an unfair disparity of sentence arose as between the appellant and Mr Solomon.
Counsel for the appellant, Ms Gould, argued that when all of these factors were taken into account, an end sentence of two years imprisonment or less ought to have been imposed. In that event, other sentencing options would have become available. Ms Gould argued strongly that, given the appellant’s preparedness to make real efforts to rehabilitate himself, a rehabilitative sentence involving intensive supervision, combined with a length of community work, ought to have been the outcome in the present case.
We will consider each of the three grounds of appeal in turn, but before doing so we will briefly summarise the factual background and the approach taken by the District Court Judge at sentencing.

Factual background

The incident leading to the charges against the appellant and Mr Solomon happened in March 2011. The appellant was 19 at the time; Mr Solomon was 35. Together, they went to the flat occupied by the victim. It seems they believed that the victim had damaged a tyre on Mr Solomon’s motor vehicle and they were seeking to obtain compensation for the damaged tyre. Each was armed, the appellant with a hammer and Mr Solomon with a piece of wood.
There was conflicting evidence as to how the appellant and Mr Solomon entered the victim’s flat. In sentencing, Judge Davidson resolved this conflict by concluding that the victim had opened the door to his flat and let both offenders in.
Once in his bedroom, both offenders began demanding compensation for the damaged tyre. The victim said he was not responsible. The offenders did not accept this and began rummaging through his property and making threats. The appellant was…

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 Norton v R

Details

AGLC: Norton v R [2012] NZCA 334
Case: [2012] NZCA 334
Decision Date: 26 July 2012

CaseChat Overview and Summary

Brock Robert Norton appeals against the sentence imposed by Judge Davidson at the District Court. Norton and his co-accused, Mr Solomon, were found guilty of one count of aggravated robbery but acquitted on a charge of wounding with intent to cause grievous bodily harm. Norton was sentenced to three years imprisonment while Mr Solomon received a sentence of two and a half years. Norton argues that the starting point of two and a half years was too high, that insufficient regard was paid to his personal circumstances, and that there was a disparity of sentence between him and Mr Solomon.

The Court considered the three grounds of appeal. Firstly, the Court held that the starting point of two and a half years was appropriate given the seriousness of the offending, which involved unlawful entry into a private home, the use of weapons, and the fact that two offenders committed the robbery on one victim. Secondly, the Court found that the appellant's extensive offending history meant that no discount for personal factors was appropriate. Finally, the Court held that there was a clear basis for distinguishing between the sentences imposed on Norton and Mr Solomon, as Mr Solomon did not have a record of previous offending of the same seriousness as Norton and was not on bail or on release conditions at the time of the offending.

The Court dismissed the appeal and upheld the sentence imposed by the District Court Judge. The Court urged Norton to take advantage of all programmes available to him in prison and to take up the offer made to him by Pastor Winter for residential care and support when his sentence ends.

Orders