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R v Clayton

R v Clayton

Case [2008] NZCA 348 5 September 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA564/07
[2008] NZCA 348
THE QUEEN
v
VINCENT JAMES CLAYTON
Hearing:25 August 2008

Court:Chambers, Potter and Miller JJ
Counsel:E C Bulger for Appellant

K Raftery for Crown

Judgment:5 September 2008 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe minimum period of imprisonment of three years is quashed and a minimum period of imprisonment of two years six months is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1]       Vincent James Clayton appeals against a sentence imposed on him by Judge Crosbie in the District Court at Christchurch on 21 September 2007. The overall sentence was five years, comprising an effective sentence of four years on 34 charges of receiving and ten charges of fraud and a cumulative sentence of one year on a charge of using a document with intent to defraud. The Judge ordered that a minimum period of imprisonment of three years be served. There is no challenge to the five year end sentence. The minimum period of imprisonment is the focus of the appeal.
Background
[2]       The charges against the appellant followed a police operation in Christchurch that focused on a burglary and receiving ring. The organised criminal ring targeted houses under construction. The appellant was provided with items, principally valuable household items and materials, sourced from these burglaries by a burglar, Mr L. In addition, the appellant received property stolen from dwelling houses, commercial premises, property in transit and, in one case, a cellular phone derived from a street robbery.
[3]       These facts gave rise to the 34 charges of receiving which involved property to the value of $54,617. The appellant was found guilty of these charges following trial by jury. He pleaded guilty prior to trial to ten counts of fraud.
[4]       The appellant also pleaded guilty to a charge of using a document with intent to defraud. This related to his use of a driver’s licence, issued in an associate’s name but with the appellant’s photograph, to obtain goods and credit to a value in excess of $50,000.
Sentence
[5]       The sentencing Judge, who was also the trial Judge, found that the appellant was “essentially in the business of crime” and that the offending was organised and extensive. He found as aggravating features of the offending that it had continued over a period of some years and that by providing a market for burglars, the appellant and a co-offender, Mr Machirus, perpetuated an “insidious underground industry”.
[6]       The Judge said that in sentencing the appellant and three co-offenders, the most important principle was deterrence, both of the offenders and of those in the criminal community who operate and participate in this type of organised offending.
[7]       After considering various relevant authorities including R v Bom CA209/96 16 October 1996, Police v Som HC WN CRI 2005-485-141 4 November 2005, and R v Lasike HC AK CRI 2004-44-7103 7 September 2006, the Judge took a starting point of four and…

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 Clayton

Details

AGLC: R v Clayton [2008] NZCA 348
Case: [2008] NZCA 348
Decision Date: 5 September 2008

CaseChat Overview and Summary

Vincent James Clayton appeals against a sentence imposed by Judge Crosbie in the District Court at Christchurch, which involved a five-year sentence, consisting of an effective sentence of four years for 34 charges of receiving and ten charges of fraud, and a cumulative sentence of one year for using a document with intent to defraud. The Judge imposed a minimum period of imprisonment of three years, which is the subject of the appeal. The Crown accepts that the minimum term must relate only to the sentence for which a minimum period of imprisonment is statutorily available and that in this case a minimum term was available only on the lead sentence of four years imposed for the receiving charges.

The court finds that the imposition of a minimum period of imprisonment of three years in relation to the total sentence of five years imprisonment was unlawful. The court agrees that section 86(1) of the Sentencing Act provides that when a determinate sentence is imposed the Court may impose a minimum period of imprisonment in relation to "that particular sentence". Accordingly, there was no jurisdiction to impose a minimum period of imprisonment in relation to the cumulative sentence in this case.

The court further finds that the sentencing Judge failed to articulate his reasons for imposing a minimum period of imprisonment. The court notes that it is a requirement of s 31 of the Sentencing Act that reasons be given for the imposition of a sentence, but the primary focus for the sentencing court in determining whether a minimum period of imprisonment should be imposed is the statutory test at s 86(2).

The appeal is allowed, and the minimum period of imprisonment of three years is quashed and a minimum period of imprisonment of two years six months is substituted.

Orders