R v Finn - [2007] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND
CA427/06
[2007] NZCA 257
THE QUEEN
v
SYMON BLAIR FINN
Hearing:12 June 2007

Court:Ellen France, Ronald Young and Keane JJ
Counsel:R A B Barnsdale for Appellant

M F Laracy for Crown

Judgment:25 June 2007 at 10.30 am

JUDGMENT OF THE COURT

A Extension of time to appeal granted.
B Appeal against sentence dismissed.
REASONS OF THE COURT

(Given by Ronald Young J)
[1]       The appellant was convicted by a jury on one count of causing the complainant grievous bodily harm with intent to cause such harm (s 188(1) Crimes Act 1961). He appeals against his sentence of six years imprisonment alleging it is manifestly excessive. The appeal was two weeks out of time. The Crown did not oppose leave being granted.
Facts
[2]       The appellant and complainant were neighbours who, a few days before 13 January 2006, had argued. On the 13^th the appellant went to the complainant’s house to apologise for the previous disagreement.   A fight broke out between the two men which continued through the house and outside. Near the entrance to the house the complainant fell over hitting his head on a concrete step. While the complainant was on the ground the appellant punched and kicked him on the head. The complainant suffered fractures to the bones around his left eye socket and cheekbones. He also suffered a number of cuts to his head which required stitching. He was kept in hospital for three nights. The victim impact report recorded that the complainant suffered nerve damage to his face which persisted to the time of sentencing. The appellant’s “defence” of self-defence was rejected by the jury.
Sentencing
[3]       The trial Judge (Judge Phillips) did not sentence the appellant. With the agreement of both counsel this was undertaken by Judge Wolff. Counsel agreed to this course after they had been provided with a brief memorandum by the trial Judge which summarised the facts and rejected the possibility that the injuries were caused by the fall rather than the appellant’s assault. That memorandum was then provided to Judge Wolff.
[4]       At sentencing, Judge Wolff accepted that initially the appellant’s reaction may have been a form of self-defence. However, the Judge said the appellant’s punching and kicking could not be categorised as self-defence. He also rejected the claim that the complainant’s fall could be responsible for his injuries. The Judge identified as relevant the significant victim impact in this case. The Judge acknowledged the appellant’s lack of previous convictions for violent offending and his addiction problems as especially relevant. He considered that the offending was in the middle of band two of R v Taueki [2005] 3 NZLR 372 (CA). He concluded that taking into account the mitigating factors a sentence of six years was appropriate.
Submissions
[5]       The appellant submits that the Judge mis-categorised this offending as band two of Taueki when it did not fit easily within the Taueki bands. He said the Judge had not identified how he…

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 Finn

Details

AGLC: R v Finn [2007] NZCA 257
Case: [2007] NZCA 257
Decision Date: 25 June 2007

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Symon Blair Finn, the appellant, contested the sentence imposed upon him by Judge Wolff, following a jury's conviction on one count of causing grievous bodily harm with intent to cause such harm. Finn's appeal was against the six-year imprisonment sentence, which he argued was manifestly excessive. The appeal was filed two weeks beyond the prescribed period, but the Crown did not oppose the granting of leave. The Court of Appeal, consisting of Ellen France, Ronald Young, and Keane JJ, was tasked with determining whether the sentence was appropriate, and if not, to what extent it was excessive.

The legal issues before the Court involved whether the trial judge's approach to sentencing was consistent with established sentencing principles and whether the sentence was manifestly excessive. Specifically, the Court had to consider if the trial judge correctly identified the relevant sentencing band and starting point, and if the sentence was proportionate to the gravity of the offence, taking into account mitigating factors. The appellant argued that the trial judge failed to adequately explain the reasoning behind categorising the offence as band two of the Taueki sentencing framework and did not sufficiently consider statutory provisions and personal mitigating factors.

The Court found that while the trial judge did not explicitly detail how he arrived at the classification of band two or the specific starting point, the sentencing process was not entirely arbitrary. The Court acknowledged the appellant's argument regarding the lack of clarity but ultimately determined that the starting point and the final sentence, while at the higher end of the range, were not manifestly excessive. The Court highlighted that the trial judge had considered the seriousness of the injuries and the nature of the attack, and that the appellant's drug addiction and care for his father were not sufficient mitigating factors to warrant a significantly lower sentence. Therefore, the Court granted leave to appeal but dismissed the appeal against the sentence.

The final orders of the Court were to grant leave to appeal and dismiss the appeal against the sentence. This means that while the Court allowed Finn to appeal, it found no grounds to reduce the sentence imposed.

Orders