Hearing: 20 February 2015

Appearances:

L C Preston for Crown
J A Westgate for S K Boskell
A Stevens and A Logan for R J Cummings
D J More and A More for R W Geary-Smart

J M Ablett-Kerr QC and S A Saunderson-Warner for R W Geary-Smart

M Winders for S R McCormack/Lawrence

Judgment:

20 February 2015

SENTENCING NOTES OF OF GENDALL J

NOTE: Names of victim’s children, their ages and details of home detention
address have been redacted.

R v BOSKELL & ORS [2015] NZHC 286 [20 February 2015]

Introduction

[1]      Steven Boskell, Robert Cummings, Jacob Geary-Smart and Ryan Geary- Smart you appear today for sentencing for the murder of Justin McFarlane. Stephanie McCormack, you appear today for sentencing for being an accessory after the fact to murder. You were all five convicted after being found guilty by a jury on
12 December 2014. This followed a nine week trial here in Dunedin. [2]     You may all remain seated until I ask you to stand.
[3]      Before getting into the detail of my remarks today can I please begin by acknowledging the presence of everybody here today. To the family and friends of the victim in this case, Mr McFarlane, who was tragically taken from you at a relatively young age, there is nothing I am able to say, or do, that can ever replace your loss. A dearly loved father, son, brother, partner, friend and relative has been taken from you. There is nothing I can say or do to change that but the sympathy of this Court is with you all.

Three strikes warning

[4] I want to talk first and just mention the three strikes warning.

[5] When on 12 December 2014 I entered convictions following your trial, I gave those of you convicted of murder, Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary-Smart a ‘three-strikes’ warning as required under the legislation. You know what that means and I will not repeat it here.

The offending

[6] I now want to turn to set out the facts of the offending as I have found them.

[7] Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary- Smart, on the day and evening of the Tuesday in 2013 in question you were engaged in the consumption of alcohol and drugs. At some point one or more of your group raised the idea of travelling to Mr McFarlane’s property for the purpose of stealing a

motorbike and obtaining drugs. It is clear the idea to steal a motorbike came from

Mr Jacob Geary-Smart. Ultimately you elected to do so.

[8] In the early morning that night of the Wednesday Ms McCormack drove you all to Mr McFarlane’s property in Mr Ryan Geary-Smart’s Nissan Skyline vehicle. When you arrived,…

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 R v Boskell

Details

AGLC: R v Boskell [2015] NZHC 286
Case: [2015] NZHC 286
Decision Date: 20 February 2015

CaseChat Overview and Summary

The defendants, Steven Boskell, Robert Cummings, Ryan Geary-Smart, Jacob Geary-Smart, and Stephanie McCormack, were convicted of the murder of Justin McFarlane. The court had to decide on the appropriate sentences for the defendants, taking into account the purposes and principles of sentencing, as well as the aggravating and mitigating factors. The court found that the defendants were all involved in the brutal and unprovoked attack on Mr McFarlane. The defendants' actions were aggravated by the fact that the murder involved unlawful entry into a dwelling place, was committed in the course of another serious offence, and was committed with a high level of brutality, cruelty, depravity or callousness. The court imposed life imprisonment sentences on the defendants, with minimum periods of imprisonment ranging from 17 to 18 years, depending on the defendant's level of involvement and culpability. Stephanie McCormack, who was an accessory after the fact to the murder, was sentenced to eight months of home detention, as the court considered it appropriate to allow her to rebuild her life and re-establish her relationship with her daughter. The court also ordered the confiscation of Ryan Geary-Smart's Nissan Skyline car.

Orders