R v Fane - [2012] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-063-959 [2012] NZHC 1807

THE QUEEN

v

CODY JAMES FANE

Hearing: 24 July 2012

Counsel: A J Gordon for Crown
H S Edward for Prisoner

Judgment: 24 July 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Rotorua
H S Edward Law, Rotorua

R V FANE HC ROT CRI 2011-063-959 [24 July 2012]

Introduction

[1] Cody James Fane, you appear today for sentence having pleaded guilty to one charge of causing grievous bodily harm with intent to do so, a charge that carries a maximum penalty of 14 years imprisonment; one charge of unlawful possession of a firearm, a charge that carries a maximum term of imprisonment of four years; and one of possessing cannabis for supply, a charge that carries a maximum penalty of eight years imprisonment.

[2] The events that gave rise to the pleas occurred on 21 February 2011. Your pleas of guilty were entered on 20 June 2012 about one [month] before your trial was due to begin. The charge of causing grievous bodily harm with intent to do so is a qualifying charge for the “three strikes” regime. The appropriate warning was given when convictions were entered before Peters J on 20 June 2012.

Facts

[3] The victim, Mr Kiwi, and yourself have known each other for some five years at the time of the incident. You are Mr Kiwi’s daughter’s partner. You and your partner had a two year old daughter. There had been investigations by Child Youth and Family. Your daughter was removed from your care. You were clearly concerned about the circumstances in which that had occurred and, given that nothing followed from the investigations, I can understand your frustrations at being separated from your child.

[4] At about 9.45am on 21 February 2011, you and Mr Kiwi became involved in an argument. It centred around Mr Kiwi wanting to take your daughter to the hospital to visit his other daughter, who had given birth to her second child. You did not want him to take her to the hospital.

[5] The argument began in the kitchen and escalated to the point when you challenged Mr Kiwi to go outside with you to sort it out. The two of you went

outside onto the driveway. You began to fight physically. Each of you were throwing punches at the other.

[6] Your partner went outside, while her mother tried to comfort the children inside the house. Your partner got in between the two of you to try to stop you from fighting. As a result, you were unable to land any effective blows. You continued to trade insults with Mr Kiwi as you circled each other as you went down the driveway out towards the roadside.

[7] In the end, Mr Kiwi turned and walked away and made his way back down the driveway towards the house. You followed before entering the house in front of Mr Kiwi. You and your partner…

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 Fane

Details

AGLC: R v Fane [2012] NZHC 1807
Case: [2012] NZHC 1807
Decision Date: 24 July 2012

CaseChat Overview and Summary

The case of R v Fane involved the sentencing of Cody James Fane for multiple charges, including causing grievous bodily harm with intent, unlawful possession of a firearm, and possessing cannabis for supply. The case was heard by Justice Heath in the High Court of New Zealand at Rotorua. Fane had pleaded guilty to these charges, which arose from an incident on 21 February 2011, where he shot Mr Kiwi in the face with a shotgun during an argument over custody of his daughter. The court was tasked with determining the appropriate sentence for these serious offences, considering the nature of the crimes, the harm caused to the victim, and any mitigating or aggravating factors.

The primary legal issues before the court were the severity of the offences, the harm inflicted on the victim, and the appropriate sentence that would reflect the seriousness of the crimes while also considering any mitigating factors such as Fane’s guilty pleas. The court needed to balance the need for denunciation, deterrence, accountability, and community protection against the mitigating factors of Fane’s early guilty plea and limited remorse. The court also had to consider the guidelines set out in previous cases, particularly R v Taueki, for sentencing involving serious violent crimes.

Justice Heath concluded that the crimes were exceptionally serious due to the use of a lethal weapon, the extreme violence involved, the targeting of the victim's head, and the severe injuries inflicted on Mr Kiwi. The court found four significant aggravating factors and considered some minor mitigating factors related to the early guilty pleas. The starting point for sentencing was set at 11 years imprisonment, with adjustments for previous convictions and the cannabis charge, resulting in a total of 10 years imprisonment. The sentences for each charge were to be served concurrently, effectively resulting in a 10-year term of imprisonment. The court imposed a minimum non-parole period of five years to ensure adequate community protection, recognising the gravity of Fane’s actions.

Orders