JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION, HAVING BEEN ABANDONED, IS DISMISSED.
B        The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Mr Fenton filed appeals against convictions for aggravated burglary, wounding with reckless disregard for the safety of another, aggravated robbery, threatening to kill and two charges of kidnapping. He also challenged an effective sentence of eight years’ imprisonment, imposed for all offending.
[2]       Mr Fenton pleaded guilty to all counts during the trial. Having changed counsel he indicated he wanted to appeal against conviction but that has been abandoned. The appeal is now against sentence only.
Background
[3]       Judge Spear, who presided at the trial and imposed Mr Fenton’s sentence, described matters thus:
[3]       The charges indicate that this is serious offending. What actually happened, of course, underscores exactly how serious this offending was. With three or four others (it is not exactly clear how many were involved – there are conflicting accounts) you travelled from South Auckland in a car down to a farm property in Taupiri. There was obviously a plan to conduct a raid of that property for the purposes of obtaining cash and cannabis.
[4]       When the car arrived at the farm cottage early that morning, at least two of your number got out of the car and brandishing [sic] weapons – namely a softball bat and a machete.
[5]       It is not entirely clear whether you got out of the car at the initial stages. You say that you did not. However, the father of the family in the home said that he looked out of the window and saw five people standing outside. This was at about 7 am on 5 December 2006. The father of the family was preparing to leave for work. He opened the door and that is when he realised that he was faced with armed individuals who were demanding to know where his money was kept and where his safe was.
[6]       There was something of a struggle right from the outset with the father of the family obviously attempting to defend his home and his family. He was initially overpowered but subsequently managed to back his way into the laundry area and then barricade himself inside the bathroom. He attempted to keep the armed offenders out of the bathroom by holding the door shut. The door was struck repeatedly with a machete. At one stage, the door was forced open sufficiently to enable the softball bat to be swung at his head striking him on the forehead causing a gash that started to bleed.
[7]       The mother of the family was in the lavatory next door to the bathroom. She closed and locked the…

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 Fenton

Details

AGLC: R v Fenton [2008] NZCA 379
Case: [2008] NZCA 379
Decision Date: 19 September 2008

CaseChat Overview and Summary

The appeal against conviction and sentence in the case of R v Fenton was heard by the Court of Appeal of New Zealand. The appellant, Mr Fenton, appealed against his convictions for aggravated burglary, wounding with reckless disregard for the safety of another, aggravated robbery, threatening to kill and two charges of kidnapping. The appeal against conviction was abandoned, leaving only the appeal against sentence. The court was required to determine whether the starting point for the lead charge (aggravated burglary) was correctly set at ten years and whether sufficient weight was given to the mitigating factors.

The court found that the starting point of ten years for the lead charge was appropriate given the nature of the crime as a home invasion. The court held that the seriousness of the crime, including the premeditated nature, the use of weapons, the threats made, the significant violence used, the impact on the victims and the property stolen, warranted such a starting point. The court also found that the appellant's involvement in the crime, though not passive, warranted a discount of two years. The court concluded that the effective sentence of eight years was within the appropriate range and dismissed the appeal against sentence.

Orders