R v Fenton - [2020] NZHC 2044

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF [REDACTED]

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-8306

[2020] NZHC 2044

THE QUEEN

v

LUCIAN MICHAEL FENTON

Hearing: 12 August 2020

Appearances:

B Hawes for the Crown

R Buddicom for Defendant

Judgment:

12 August 2020

[REDACTED] SENTENCING REMARKS OF OSBORNE J

Introduction

[1] Mr Fenton, please stand. You have pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that as you will know is 14 years’ imprisonment.

[2] I am going to shortly invite you to sit again because I need to identify the background to your offending, the facts which you have heard counsel talk about and which you will have seen in their written submissions, and importantly the reasons for the sentence I will impose on you. That will take some time.

R v FENTON [2020] NZHC 2044 [12 August 2020]

[3]Please be seated.

[4] To consider the sentence I should impose on you, I will deal with a number of topics:

(a)First, I will refer to the facts. They will include my consideration of the victim impact statements which the victims of your offending have provided.

(b)I will turn to examine the period of imprisonment which I should impose on you. That requires me to consider, as you will have seen from counsel’s submissions:

(i)first, a starting point, that is a period of imprisonment which I consider reflects the seriousness of your crime;

(ii)secondly, personal factors about you which make your offending worse; and

(iii)thirdly, the circumstances personal to you which reduce your level of responsibility for the crime and also bring into account your guilty plea.

[5] I should explain before I do that that latter category of matters are the circumstances personal to you rather than related to the offending, so in relation to the matters Ms Buddicom addressed me on concerning the provocation involved in the incident, I will be dealing with those in relation to the first part, the starting point sentence.

[6]At this point, I am going to summarise the facts.

Factual background

[7] On the day of the offending, 14 September 2019, you and your partner were visiting an associate, who I will call Jamie, at his address in Christchurch. At about

8.45 pm, Ngaoa Kokaua (the victim) and a female associate parked up the driveway at the address, intending to retrieve a vehicle which belonged to the female associate. You and Mr Kokaua did not know each other.

[8] You were leaving the house as he pulled up. As you walked past the driver’s door, Mr Kokaua asked to see Jamie. You asked who was asking, to which Mr Kokaua replied: “it doesn’t matter, I want to talk to him”.

[9] Mr Kokaua got out of his vehicle, demanding to speak with Jamie. He followed you back towards the house, carrying a large metal wrench. You entered the house and closed…

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 [2020] NZHC 2044
Case: [2020] NZHC 2044
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of R v Fenton was heard by Osborne J in the High Court of New Zealand. The defendant, Lucian Michael Fenton, pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The maximum penalty for this offence is 14 years imprisonment. The court heard submissions from both the Crown and the defence, with the Crown represented by B Hawes and the defendant by R Buddicom.

The legal issues the court was required to decide included the appropriate starting point for the sentence, the aggravating and mitigating factors of the offending, and the appropriate sentence to be imposed. The court also considered whether a minimum period of imprisonment should be imposed.

The court found that there were four aggravating features of the offending, including extreme violence, serious injury, the use of a knife, and evidence that the attack was to the head. The court accepted that there was an element of provocation relevant to the offending, due to the home invasion by a man carrying and using a large weapon. The court found that the offending fell in the upper half of band two, and set a starting point of seven years and nine months imprisonment. The court then considered personal mitigating factors, including the defendant's criminal history, personal background and deprivation, and remorse. The court found that the defendant had a very unsettled and disadvantaged childhood, and that this justified a level of discount for personal mitigating factors. The court also found that the defendant had expressed remorse in appropriate terms.

The court concluded that the appropriate sentence was five years and five months imprisonment, with a minimum period of imprisonment of two years and eight months. The court found that an MPI was necessary to meet the purposes of sentencing in this case, due to the seriousness of the attack, the defendant's previous convictions, and the level of risk of reoffending.

The final orders of the court were that the defendant be sentenced to five years and five months imprisonment, with a minimum period of imprisonment of two years and eight months. The court also ordered that the names or identifying particulars of the defendant not be published.

Orders