R v Duncan - [2009] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND
CA345/2009
[2009] NZCA 408
THE QUEEN
v
CHASSY MCALLISTER FORD DUNCAN
Hearing:2 September 2009

Court:Glazebrook, Gendall and Asher JJ
Counsel:K E Becker for Appellant

K J Beaton for Crown

Judgment:15 September 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
INTRODUCTION
[1]       Mr Duncan was sentenced to a term of two years six months’ imprisonment, following his conviction for one count of theft. He appeals that sentence, asserting that it was manifestly excessive.
Background
[2]       On the afternoon of 15 March 2008, Mr Duncan and two others drove to a local beach. He was 19 at the time. One of the Mr Duncan’s associates entered a nearby café, which was open for business. While inside the café, the associate noticed a key to a safe that was on the premises. Using the key, presumably in a clandestine manner, he opened the safe. The sum of approximately $16,500 was taken. The associate placed the cash in a rubbish basket. Apparently he was not wearing a shirt and did not feel that he was able to smuggle the cash outside. He then went back out to the car.
[3]       After a discussion with his associates, Mr Duncan left the car and went into the café. He sat down and spent some time there, noting the cash in the rubbish basket. He then took the cash and walked out. The cash was divided between Mr Duncan and his associates. Mr Duncan, with his share, purchased two vehicles, a new queen sized bed and mattress, drawers and a television.
[4]       When spoken to by the police in relation to the matter, Mr Duncan initially denied his involvement. He elected trial by jury. A trial commenced on 13 May 2009. It was aborted after one-and-a-half days of evidence, when the Judge declared a mistrial. The re-trial was to begin on 27 May 2009. On that date Mr Duncan requested a sentence indication hearing. Following this, he changed his plea to guilty.
The sentencing decision
[5]       Judge Garland, in the District Court at Palmerston North, adopted a two-and-a-half year starting point for the offending, which he considered to be “moderately serious”. He increased that starting point by six months to reflect the Mr Duncan’s previous offending. He then gave credit for personal mitigating features, which were the very late guilty plea, regret, and an apparent change in attitude. To reflect these factors, the end sentence was reduced by six months, to two-and-a-half years’ imprisonment.
[6]       Mr Becker, for Mr Duncan, submits that the sentencing Judge was wrong to regard premeditation as an aggravating feature of the offending, and that the sentence failed to adequately reflect the appellant’s remorse. Although the starting point was not specifically attacked, Mr Becker referred to some High Court judgments where different starting points had been reached and, in his submissions, he appeared at times to be asserting that the Judge had…

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 Duncan

Details

AGLC: R v Duncan [2009] NZCA 408
Case: [2009] NZCA 408
Decision Date: 15 September 2009

CaseChat Overview and Summary

In the case of R v Duncan, the appellant, Duncan, was sentenced to two years and six months' imprisonment for theft. He appealed, claiming the sentence was manifestly excessive. The court considered the nature of the theft, which involved stealing approximately $16,500 from a café safe, the premeditation involved, and the significant impact on the victim. The District Court judge had set a starting point of two-and-a-half years for the offending, which the Court of Appeal found to be appropriate. The judge increased the sentence by six months due to Duncan's prior convictions and reduced it by six months for his late guilty plea, remorse, and positive reports regarding his character. The court found the discount for remorse to be within the appropriate range and that the final sentence was consistent with earlier decisions. The appeal was dismissed.

The court examined the starting point for the offence, the consideration of premeditation, and the discount given for Duncan's remorse and late guilty plea. It noted that the amount stolen and the premeditation involved made the offending moderately serious. The court found the starting point of two-and-a-half years to be appropriate and the discount for remorse and the guilty plea to be reasonable. The final sentence was deemed appropriate in the circumstances.

Orders