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R v Brown

R v Brown

Case [2009] NZCA 288 7 July 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA20/2009
[2009] NZCA 288
THE QUEEN
v
FRANK JAMES BROWN
Hearing:15 June 2009

Court:Chambers, MacKenzie and Simon France JJ
Counsel:I D Farquhar for Appellant

M F Laracy for Crown

Judgment:7 July 2009 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentence of:
(a)Three years nine months’ imprisonment for wounding with reckless disregard is quashed and a sentence of two years eight months’ imprisonment is substituted;

(b) Two months’ imprisonment for assault is confirmed;
(c)Two months’ imprisonment for resisting a constable in the execution of his duty is confirmed;
(d)Two years’ imprisonment for burglary is quashed and a sentence of one year’s imprisonment is substituted;
(e)Two years’ imprisonment for receiving is quashed and a sentence of six months’ imprisonment is substituted –

And sentences (a)-(c) are concurrent and sentences (d) and (e) are concurrent but cumulative on sentences (a)-(c), making a total effective sentence of three years eight months’ imprisonment.
C The fines, which were remitted without jurisdiction, are reinstated.

REASONS OF THE COURT
(Given by MacKenzie J)
[1]       This is an appeal against a total sentence of five years nine months imprisonment by Judge Weir in the District Court at Rotorua. That followed pleas of guilty to one charge of wounding with reckless disregard for the safety of others; one charge of assaulting a child; one charge of resisting police; one charge of burglary; and one charge of receiving.
Background
[2]       On 29 July 2008 the appellant, who is an unemployed 23 year old man, was drinking with neighbours and his partner. Also present was the victim, their 14 month old son. The appellant became very drunk. His partner left to get a bottle for the victim. The appellant’s partner returned 30-45 minutes later. She found the victim lying on a couch with a black eye. She took him and fled the scene, seeking assistance from the residents of another house. The victim suffered from scratches and abrasions to his back, bruising and a small cut on his mouth, severe bruising around his right eye and a cut on his right eyelid requiring six stitches. He spent three nights in hospital. The injuries were consistent with the victim being punched about the head at least twice and possibly more than that.
[3]       Police were called and located the appellant in the street shortly after the incident. He was screaming incoherently and pacing around in a very agitated state. He fled when he saw the police and police cordoned off the area. When the appellant was seen again he was still screaming incoherently and approached the police aggressively. After police ordered him to remain stationary he fled down the street again. He was caught trying to climb a fence. He struggled with them and attempted to escape, before he was apprehended. When questioned, the appellant had no memory of inflicting the injuries, but admitted hitting the victim on the leg (which was the subject of the charge…

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 Brown

Details

AGLC: R v Brown [2009] NZCA 288
Case: [2009] NZCA 288
Decision Date: 7 July 2009

CaseChat Overview and Summary

Frank James Brown has appealed against his sentence of five years and nine months' imprisonment imposed by Judge Weir in the District Court at Rotorua. Brown had pleaded guilty to charges of wounding with reckless disregard for the safety of others, assault on a child, resisting a constable, burglary, and receiving stolen property. The court was required to decide whether the starting points and discounts applied by the sentencing Judge were appropriate, and whether the totality principle was correctly applied. The Court of Appeal found that the starting point for the wounding charge was too high and reduced it from five years to three and a half years, with a discount of ten months for the guilty plea and remorse, resulting in a sentence of two years and eight months. The starting points for the burglary and receiving charges were also found to be too high and were reduced to 18 months and 12 months respectively, to be served cumulatively on the wounding charge but concurrently with each other. The sentences for resisting a constable and assault on a child were confirmed. The fines that were remitted without jurisdiction were reinstated. The total effective sentence was three years and eight months' imprisonment. The appeal was allowed and the sentence was varied as outlined above.

Orders