R v Fidow - [2013] NZCA 209

IN THE COURT OF APPEAL OF NEW ZEALAND

CA163/2013
[2013] NZCA 209

BETWEEN	THE QUEEN Appellant
AND	DARREN MURPHY FIDOW Respondent

Hearing:	23 May 2013
Court:	O'Regan P, Goddard and Dobson JJ
Counsel:	M J Inwood for appellant P J B Winter for respondent
Judgment:	6 June 2013 at 2.30 pm

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe appeal is allowed.
CThe cumulative sentences of nine months’ and two months’ home detention on the aggravated robbery and burglary convictions are quashed. Cumulative sentences of one year and 11 months’ imprisonment on the aggravated robbery conviction and five months’ imprisonment on the burglary conviction are substituted.
D The respondent is directed to surrender himself to the Registrar of the District Court at Auckland on or before 10 am on Monday 10 June 2013 to commence serving his sentence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

The Solicitor-General seeks leave to appeal against a sentence on the basis that it is manifestly inadequate. The sentence imposed, for a moderately serious aggravated robbery was nine months’ home detention with a cumulative sentence of two months’ home detention for an unrelated burglary.[1] It was argued for the Solicitor‑General that two cumulative sentences totalling at least two years and four months’ imprisonment were required.

The offending

[1]R v Fidow DC Auckland CRI-2011-090-4496, 18 February 2013 [the sentencing notes].

On an afternoon in May 2011, the respondent (Mr Fidow) and an accomplice stationed themselves at an appropriate vantage point near a suburban shopping complex in Auckland. Mr Fidow saw a slightly built 82 year old woman, who was the victim of his aggravated robbery, leaving a hair salon and crossing the car park of the complex. Mr Fidow pushed the victim to the ground, attempting to remove a handbag that the victim was carrying over her shoulder. The victim held on to the bag but Mr Fidow pulled the bag with sufficient force to get it out of her grasp. He then ran from the scene with the bag. The victim suffered a broken hip that required surgery, a broken wrist, bleeding on the side of her nose and facial bruising.
The victim was in hospital for approximately one month, requiring reconstructive surgery on her wrist and hip. A victim impact statement from her described the attack as having substantial and permanent adverse effects in that she has lost her independence, is unable to undertake tasks with the energy she had before, and is disabled.
Mr Fidow’s offending was captured on CCTV. He was apprehended in June 2011 and admitted the robbery. He assisted Police by describing where the victim’s handbag had been disposed of. The handbag was then recovered although the $600 cash, which the victim described as having been her life’s savings, was not recovered. We were told that some money remained in the bag when it was retrieved, although Ms Inwood suggested that may have been because it was in a concealed compartment.
Mr Fidow’s explanation…

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 Fidow

Details

AGLC: R v Fidow [2013] NZCA 209
Case: [2013] NZCA 209
Decision Date: 6 June 2013 at 2.30 pm

CaseChat Overview and Summary

In the case of R v Fidow, the Court of Appeal of New Zealand was called upon to review the sentence imposed on Darren Murphy Fidow for an aggravated robbery and a subsequent burglary. The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly inadequate. The Crown argued that the sentence of nine months' home detention for the aggravated robbery and two months' for the burglary was insufficient given the circumstances and impact of the crimes. The Court agreed that the sentence was inadequate and allowed the appeal, substituting the home detention sentences with cumulative sentences of imprisonment.

The Court outlined that the aggravated robbery involved a violent attack on an 82-year-old woman, causing significant physical and emotional harm. The Court emphasised the need for a sentence that appropriately reflected the seriousness of the crime. The Court further noted that the sentencing Judge had erred in applying the discount for the guilty plea, and had improperly considered the appropriateness of a home detention sentence for the aggravated robbery before assessing the total sentence. The Court decided to re-sentence Fidow, taking into account the appropriate starting points and discounts for mitigating factors, and ensuring that the total sentence was proportionate to the offending.

After considering the submissions from both sides, the Court determined that the appropriate sentence for the aggravated robbery was one year and 11 months' imprisonment, and five months' for the burglary. The Court emphasised the need for caution when substituting a sentence of imprisonment for a previously imposed non-custodial sentence but concluded that in this case, the error in principle warranted reconsideration of the entire sentencing exercise. The Court directed Fidow to surrender himself to custody to commence serving his sentence.

Orders