R v Eliu - [2008] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND
CA115/2008
[2008] NZCA 239
THE QUEEN
v
DANIEL ELIU
Hearing:3 July 2008

Court:Chambers, Panckhurst and Fogarty JJ
Counsel:H B Leabourn for Appellant

K Raftery for Crown

Judgment:15 July 2008 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeal against the sentence for wounding with intent to cause grievous bodily harm is dismissed.
BThe cumulative sentence of four months imprisonment for non-payment of fines is quashed. The fines, in the sum of $8,303.47 are restored, having been remitted without jurisdiction.

____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1]       The appellant was sentenced to 11 years imprisonment upon a charge of wounding with intent to cause grievous bodily harm. Judge Wilson QC also remitted fines in the sum of $8,303.47 and, in consequence, imposed a cumulative sentence of four months imprisonment for their non-payment. The appeal against sentence raises two issues. First, it is said that the cumulative sentence of four months imprisonment is excessive, and second, that the 11 year term was also clearly excessive in light of the circumstances of the offending and the appellant’s role in it.
[2]       We shall consider the four month cumulative term first and then the question of the 11 year sentence.
Imprisonment for non-payment of fines
[3]       No doubt because of the seriousness of the offence upon which the appellant had been convicted at trial and the inevitability of a substantial sentence of imprisonment, the pre-sentence report referred to unpaid fines, reparation and associated enforcement fees. The figures contained in the report, and in a fines summary annexed to it, indicated a total sum of over $10,000 being about $5,000 in fines, $2,400 in reparation and $3,000 in fees. However, Judge Wilson remitted a sum of $8,303.47 and said:
and in lieu thereof you are sentenced to four months’ imprisonment cumulative.

[4] There was no jurisdiction to do this. A District Court Judge can imprison for non-payment of fines only in the circumstances specified in ss 83 and 88 of the Summary Proceedings Act 1957. The s 83 criteria were not fulfilled. Nor were the s 88 criteria. Section 88(3)(b), permitting a warrant of commitment to issue (if certain criteria are met), is subject to s 106E headed “Restrictions on alternative sentences”. Subsection (2) prescribes several restrictions in relation to the imposition of a sentence of imprisonment, including that the defendant has completed a statement of means and the Judge is satisfied he/she has the means to pay the fine. In effect, imprisonment is a sentence of last resort. In this case there is nothing to indicate that the statutory pre-conditions were met. Accordingly, jurisdiction to impose the sentence did not exist.
[5] Further, Judge Wilson had no jurisdiction to remit the fines. Fines may be remitted under s 88(3)(h), but, again, only if the s 88 procedure has been complied with. It had not been here. See R v King CA23/01 21 June 2001. Accordingly the fines must be restored, having been…

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 Eliu

Details

AGLC: R v Eliu [2008] NZCA 239
Case: [2008] NZCA 239
Decision Date: 15 July 2008

CaseChat Overview and Summary

In the case of R v Eliu, the appellant, Daniel Eliu, was sentenced by Judge Wilson QC to 11 years imprisonment for wounding with intent to cause grievous bodily harm, along with a cumulative sentence of four months imprisonment for non-payment of fines. The appeal against the sentence was heard by the Court of Appeal of New Zealand, consisting of Chambers, Panckhurst, and Fogarty JJ. The central legal issues addressed in the appeal were whether the cumulative sentence for non-payment of fines was excessive and if the 11-year term for the primary offence was also excessive given the circumstances of the case and the appellant's role in it.

The Court found that Judge Wilson lacked jurisdiction to impose the four-month cumulative sentence for non-payment of fines. According to the Summary Proceedings Act 1957, a District Court Judge can only imprison for non-payment of fines under specific circumstances outlined in sections 83 and 88, neither of which were met in this case. Furthermore, the Judge did not have the authority to remit the fines as the statutory preconditions for doing so were not fulfilled. Therefore, the fines were to be restored.

Regarding the 11-year sentence, the Court agreed with Judge Wilson's assessment that the appellant was equally culpable as his co-offender, Mr. Hines, in the crime. The appellant played a significant role in kidnapping the victim and supporting the attack, which led to severe injuries. The Court found no basis to differentiate between the culpability of the co-offenders and upheld the starting point of 12 years imprisonment as appropriate, considering the premeditated nature of the crime and its serious impact on the victim.

Ultimately, the appeal against the 11-year sentence was dismissed, and the cumulative sentence of four months for non-payment of fines was quashed. The fines in the sum of $8,303.47 were restored, having been remitted without jurisdiction.

Orders