R v Buttar - [2008] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND
CA560/07
CA561/07
CA562/07
CA563/07
[2008] NZCA 28
THE QUEEN
v
GURNAM SINGH BUTTAR
HARPAL SINGH NIJJAR
GURPREET SINGH BUTTAR
AMRIT SINGH
Hearing:20 February 2008

Court:Robertson, Randerson, and Ronald Young JJ
Counsel:L B Cordwell for Appellants

M D Downs for Respondent

Judgment:26 February 2008 at 10.30 am

JUDGMENT OF THE COURT

The appeals against sentence by all appellants are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
[1]       On 14 September 2007, the appellants were sentenced by Judge McElrea in the District Court to terms of imprisonment on a joint charge of wounding with intent to cause grievous bodily harm, to which they had eventually entered guilty pleas.
[2]       It is not in dispute that Gurnam Singh Buttar was the principal offender. He was sentenced to three and a half years’ imprisonment. The other three appellants were each sentenced to two and a half years’ imprisonment.
[3]       They appeal against their sentences on the basis that the starting point adopted by the Judge was too high, and that insufficient allowance was made for mitigating factors.
[4]       At the hearing, Mr Cordwell for the appellants withdrew an application for leave to submit an affidavit intended to address a suggestion that the victim had provoked the assault. Mr Cordwell also expressly abandoned a submission that the Judge had wrongly accepted that there was no provocation offered by the victim.
The sentencing process
[5]       The events leading to the sentence were unusual. The offending occurred on 18 November 2005 and involved a violent attack by five members of the Sikh community in Auckland on another member of that community. Four days later, the offenders presented themselves to the police and, on 15 December 2005, they were charged. All pleaded not guilty and were committed for trial on 17 May 2006. Their trial was to commence on 23 July 2007 but, approximately one week beforehand, a sentence indication hearing was held before Judge McElrea. The sentence indications given at that time were slightly higher than those ultimately imposed.
[6]       On the same day as the sentence indication hearing, a Panchayati conference was held. We were told this is a traditional Sikh process aimed at resolving conflict. The conference was attended by the offenders and by elders from the Sikh community.
[7]       The following day, the appellants entered pleas of guilty.
[8]       This was followed on 10 September 2007 by a restorative justice conference directed by the Court and attended by the offenders, the victim and members of the Sikh community. These processes had successful outcomes in that the offenders apologised to the victim, agreed to undertake some community work for the Sikh community, and it was agreed that total reparation of $40,000 would be paid. The victim was satisfied with the outcome but made it clear that he still expected the offenders to be dealt with by the Court. He stated however that he did not wish the Court to impose a sentence of imprisonment.

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 Buttar

Details

AGLC: R v Buttar [2008] NZCA 28
Case: [2008] NZCA 28
Decision Date: 26 February 2008

CaseChat Overview and Summary

The case of R v Buttar involved four appellants who were convicted of wounding with intent to cause grievous bodily harm. The appellants appealed against the sentences imposed on them by the District Court, arguing that the starting point for their sentences was too high and that insufficient allowance was made for mitigating factors. The appellants were sentenced to terms of imprisonment, with the principal offender receiving the longest sentence.

The legal issues before the Court of Appeal were whether the starting point for the sentences was appropriate and whether the discount for mitigating factors was sufficient. The Court of Appeal considered the severity of the crime, the level of premeditation, and the mitigating factors presented by the appellants. The Court of Appeal also noted the restorative justice conferences that had been held, which resulted in apologies, community work, and reparation payments.

The Court of Appeal found that the starting points for the sentences were justified, given the seriousness of the crime and the level of premeditation. The Court of Appeal also found that the discount for mitigating factors was appropriate, given the statutory purposes of denunciation and deterrence. The appeals against sentence were dismissed, and the original sentences were upheld.

The Court of Appeal emphasized the importance of a firm response from the Court to incidents of serious violence, particularly those involving the use of weapons. While the benefits of the restorative justice process were recognized, the Court of Appeal found that the appellants were fortunate to have received a total discount as large as 50 percent. The Court of Appeal also noted that the Court must represent the interests of all concerned, including society as a whole.

Orders