BThe sentence and the minimum period of imprisonment for the aggravated burglary charge are both quashed. We substitute a sentence on that charge of four years six months imprisonment, with a minimum period of imprisonment of two years three months.

C All other sentences imposed in the District Court remain unchanged.

R V GORDON JAMES DREWETT CA CA312/06 6 March 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant was sentenced by Judge Dawson in the District Court at Palmerston North on charges of aggravated burglary, assault with intent to injure, intentionally damaging a window and attempting to pervert the course of justice. He was sentenced to terms of imprisonment for that offending as follows:

(a) Aggravated burglary: five years six months;

(b) Assault with intent to injure: one year six months (concurrent); (c) Intentional damage: two weeks (concurrent); and
(d) Attempting to pervert the course of justice: nine months (cumulative).

[2] He appeals against the sentence of five years six months imprisonment for the aggravated burglary charge, but not against the other sentences. He also appeals against the Judge’s imposition of a minimum period of imprisonment of three years three months.

Background and sentence

[3] The appellant and the complainant had previously been in a relationship. The appellant learned that the complainant had started a relationship with one of the appellant’s friends. At 1 am on 29 October 2005 the appellant came to the complainant’s home and smashed a glass windowpane in her front door. He then entered the complainant’s home briefly before leaving. Prior to this, he had rung the complainant and threatened to kill her and himself. The complainant phoned the

Police and the appellant was arrested a short time later. He was taken to the Police station, charged with intentional damage and bailed, conditional on him refraining from going within 100 metres of the complainant’s home or associating with the complainant.

[4] Around two hours later, the appellant returned to the complainant’s home. He had a large wooden stick wrapped in green insulation tape. He entered the home by opening the front door handle from the inside, by way of the broken window he had smashed earlier. Inside the house were the complainant, her four children and a friend of hers. The appellant trapped the complainant at the back door of the house and punched her in the head and face repeatedly, about ten to 12 times. She suffered bruising to her arms and lips and small lacerations and bruises all over her head.

[5] The appellant was committed for trial in February 2006. In April 2006, prior to his trial, the appellant sent a significant number…

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 Drewett

Details

AGLC: R v Drewett [2007] NZCA 48
Case: [2007] NZCA 48
Decision Date: 6 March 2007

CaseChat Overview and Summary

The appellant, Gordon James Drewett, was convicted of aggravated burglary, assault with intent to injure, intentionally damaging a window, and attempting to pervert the course of justice. He was sentenced by Judge Dawson in the District Court to five years and six months imprisonment for the aggravated burglary charge, among other sentences. Drewett appealed against the sentence for the aggravated burglary charge, arguing that it was wrong in principle and excessive. The appeal was heard by O’Regan, Chisholm, and MacKenzie JJ in the Court of Appeal of New Zealand.

The legal issues before the Court were whether the sentence imposed was wrong in principle and whether the minimum period of imprisonment was justified. The appellant contended that the Judge erred in referring to a case on aggravated robbery, that the description of the appellant’s earlier offending was not similar, that the Judge relied on a police summary of facts containing unconvicted allegations, and that the imposition of a minimum period of imprisonment was based on an unproven “road rage” incident. The Court had to determine whether the sentence was within the appropriate range and whether the minimum period of imprisonment was justified.

The Court of Appeal found that the Judge did not adequately state the starting point, the uplift from that point to reflect aggravating factors, or the discount for mitigating factors. Therefore, the Court had to undertake the sentencing exercise again to establish whether the sentence imposed was within range. The Court concluded that an appropriate starting point was four years and six months imprisonment, reflecting the seriousness of the break-in and the totality of the offending. The Court added one year and six months to the starting point to reflect aggravating features, such as the fact that the offending occurred while the appellant was on bail and his poor criminal record. The Court allowed a credit of 25% for the guilty plea, leading to an end sentence of four years and six months imprisonment. The Court also found that a minimum period of imprisonment of two years and three months was appropriate to hold the appellant accountable for the harm done to the victim and to deter him from committing similar offences.

The Court of Appeal allowed the appeal, quashed the sentence and the minimum period of imprisonment for the aggravated burglary charge, and substituted a sentence of four years and six months imprisonment with a minimum period of imprisonment of two years and three months. All other sentences imposed in the District Court remained unchanged.

Orders