IN THE COURT OF APPEAL OF NEW ZEALAND
CA345/2009
[2009] NZCA 408THE 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…
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- AGLC
- R v Duncan [2009] NZCA 408
- Case
- [2009] NZCA 408
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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