Paul v The Queen - [2019] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA681/2018
[2019] NZCA 333

BETWEEN	MAXINE AVLON PAUL Appellant
AND	THE QUEEN Respondent

Hearing:	17 July 2019
Court:	Collins, Simon France and Lang JJ
Counsel:	W T Nabney for Appellant B D Tantrum and K B Guilford for Respondent
Judgment:	25 July 2019 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

On the afternoon of 7 January 2017, Ms Paul was in the front passenger seat of a car being driven by her then partner along State Highway 2 between Tauranga and Katikati. It is a particularly busy highway. Ms Paul and her partner had been drinking alcohol that day. She was arguing with her partner and as the car came towards another vehicle, Ms Paul reached across to the driving wheel and wrenched it with sufficient force that the car she was in crossed onto the wrong side of the road. Ms Paul’s partner managed to regain control of the car so as to avoid any collision. A few seconds later, however, Ms Paul again grabbed the steering wheel with both hands and as a consequence, the car, for a second time, crossed onto the wrong side of the road. This time it collided with a Toyota Hilux wagon causing a major crash.
Ms Paul’s partner suffered cracked ribs and abdominal bruising. The driver of the Toyota suffered a laceration to his forehead and extensive injury to his left wrist. A passenger in the Toyota suffered lacerations to her skull, whiplash and multiple contusions. She also suffered damage to her hearing. Ms Paul was injured in the collision. She suffered a broken nose, cheek bone, sternum and ribs.
Ms Paul was charged with the attempted murder of her partner and two charges of dangerous driving causing injury. She was convicted following a trial by jury of the dangerous driving charges and sentenced by Edwards J to two years and three months’ imprisonment.[1] Ms Paul was also ordered to pay $3,500 by way of reparation. That payment was to be made by instalments at the rate of $10 per week. Ms Paul now appeals her sentence.

Grounds of appeal

[1]R v Paul [2018] NZHC 2783.

Two grounds of appeal have been advanced:
(a)The starting point of two years and eight months’ imprisonment was too high.
(b)Further adjustment should be made in light of an offer made by Ms Paul in this Court to pay $5,000 reparation in a lump sum.
Counsel for Ms Paul submitted that the following factors warranted a starting point of close to two years’ imprisonment:
(a)Ms Paul was not actually driving the car; and
(b)her offending was spontaneous and occurred for just a few moments.
It was emphasised that Ms Paul was less culpable than defendants in other cases of dangerous driving causing injury where, for example,…

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 Paul v The Queen

Details

AGLC: Paul v The Queen [2019] NZCA 333
Case: [2019] NZCA 333
Decision Date: 25 July 2019 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal by Maxine Avlon Paul against her sentence for dangerous driving causing injury. Ms Paul was convicted following a trial by jury and was sentenced to two years and three months’ imprisonment by Edwards J, along with an order to pay $3,500 by way of reparation in instalments. Ms Paul appeals against the sentence imposed, arguing that the starting point of two years and eight months’ imprisonment was too high and that further adjustment should be made in light of an offer made by Ms Paul to pay $5,000 reparation in a lump sum.

The court considered the two grounds of appeal presented by Ms Paul’s counsel. Firstly, it was submitted that the starting point of two years and eight months’ imprisonment was too high, given that Ms Paul was not actually driving the car and her offending was spontaneous and occurred for just a few moments. Secondly, it was argued that further adjustment should be made in light of an offer made by Ms Paul to pay $5,000 reparation in a lump sum. The court granted the application to adduce further evidence of Ms Paul’s offer to pay $5,000 reparation in a lump sum.

The court held that the High Court Judge correctly assessed the starting point of two years and eight months’ imprisonment, considering Ms Paul’s high level of culpability, her motives and the serious harm caused by her conduct. The court was not satisfied that reducing Ms Paul’s sentence would be a principled response to the increased reparation offer, particularly as Ms Paul had not demonstrated any genuine remorse. The appeal against sentence was therefore dismissed.

The final orders of the Court of Appeal of New Zealand were that the application to adduce further evidence was granted, and the appeal against sentence was dismissed.

Orders