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R v Chiyabi

R v Chiyabi

Case [2008] NZCA 10 20 February 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA457/07
[2008] NZCA 10
THE QUEEN
v
BOB MUZYIMBA CHIYABI
Hearing:13 February 2008

Court:Ellen France, Williams and Heath JJ
Counsel:R A B Barnsdale for Appellant

H D M Lawry for Crown

Judgment:20 February 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       As a result of an incident that occurred on 22 December 2006, Mr Chiyabi was charged with one count of threatening to kill two children. The following day, Mr Chiyabi was released on bail by the District Court on condition that he not contact the complainant nor consume alcohol.
[2]       On 13 March 2007, while heavily intoxicated, Mr Chiyabi stood outside the complainant’s house and yelled abuse at him. The police were called and arrested him for breach of bail. Mr Chiyabi resisted arrest and, in the course of doing so, assaulted a police officer. The assault was an attempt to head-butt a police officer. Mr Chiyabi was charged with both assaulting a police officer and resisting arrest.
[3]       Mr Chiyabi pleaded guilty to the two summary charges arising out of the March 2007 events. A jury found him guilty on the threatening to kill charge, following a trial in July 2007.
[4]       While Mr Chiyabi has a lengthy criminal history, his prior convictions were for property and driving offences. He has no prior convictions for violent offending or threatening conduct.
[5]       Mr Chiyabi was sentenced in the District Court on all three charges on 10 August 2007. He was sentenced by Judge Spear, who had presided over the jury trial.
[6]       The Judge imposed a sentence of two years six months imprisonment on the threatening to kill charge: DC HAM CRI 2007-019-3180 10 August 2007. He added an effective sentence of three months imprisonment on the assault and resisting arrest charges. The cumulative effect was to impose an end sentence of two years nine months imprisonment.
[7]       Mr Chiyabi appeals against that sentence on the grounds that it was manifestly excessive.
Background
[8]       Mr Chiyabi had been released from a custodial sentence on 6 December 2006. He was on parole at the time of the 22 December 2006 offence.
[9]       The threat was made in the context of a complaint, made by his neighbour, of excessive noise coming from Mr Chiyabi’s house during a party. After the police had been called and had shut the party down, Mr Chiyabi confronted his neighbour.
[10]     On ascertaining that his neighbour was the person who had made the complaint, Mr Chiyabi threatened to kill the neighbour’s children if the complainant contacted the police about him again. Mr Chiyabi’s neighbour’s children are aged 14 and six years, a son and daughter respectively. Due to the long hours the neighbour and his wife work, their children are sometimes alone in the house.
The District Court sentencing
[11]     Sentencing took place against the background of the jury verdicts on…

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 Chiyabi

Details

AGLC: R v Chiyabi [2008] NZCA 10
Case: [2008] NZCA 10
Decision Date: 20 February 2008

CaseChat Overview and Summary

In the case of R v Chiyabi, the appellant, Bob Muzyimba Chiyabi, was convicted of threatening to kill two children, assaulting a police officer, and resisting arrest. The District Court imposed a sentence of two years and six months imprisonment on the threatening to kill charge, along with an effective sentence of three months imprisonment for the assault and resisting arrest charges, resulting in a cumulative sentence of two years and nine months imprisonment. Chiyabi appealed against the sentence, arguing that it was manifestly excessive.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive. The Court considered whether the sentence was within the range of sentences that could be justified by the totality of the offending and the offender, taking into account the principles of sentencing and the precedents set by previous cases.

The Court of Appeal held that the sentence imposed by the District Court was not manifestly excessive. The Court acknowledged that there is no specific tariff for the offence of threatening to kill, and that the circumstances of each case must be considered individually. The Court found that the totality of Chiyabi's offending, including the threat to kill, the assault on a police officer, and the resisting arrest, justified a starting point of around three years imprisonment. The Court also considered the aggravating factors, such as the offending on parole and the effect of the threat on the complainant, and the mitigating factors, such as Chiyabi's HIV status and difficulties in settling in New Zealand. The Court concluded that the sentence imposed by the District Court was justified and not manifestly excessive.

The appeal against sentence was dismissed.

Orders