R v Ford - [2008] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND
CA675/07
[2008] NZCA 64
THE QUEEN
v
RICHARD ALLAN FORD
Hearing:20 February 2008

Court:Hammond, John Hansen and Priestley JJ
Counsel:R M Gould for Appellant

M E Ball for Crown

Judgment:18 March 2008 at 11 am

JUDGMENT OF THE COURT

A.THE APPEAL AGAINST SENTENCE IS ALLOWED.

B. The sentence of two years, three months’ imprisonment is quashed.
C. The appellant is sentenced to eight months’ home detention.
D.In addition to the standard conditions of home detention, the appellant is subject to the conditions set out in [22] of this judgment.

REASONS OF THE COURT
(Given by John Hansen J)
[1]       On 15 November 2007 the appellant was sentenced to two years, three months’ imprisonment on two charges of attempting to make intimate visual recordings and one charge of burglary. He appeals on the basis the sentence is manifestly excessive. His submission is the Judge should have imposed a sentence of home detention to enable rehabilitation options to be pursued.
Facts
[2]       On 15 December 2005 the appellant was trespassed from the BNZ Building in Wellington. That related to an earlier incident that occurred in the public toilets of that building and resulted in the appellant being convicted of indecent assault. He was imprisoned for this and other offending.
[3]       Just six weeks after his release from prison, on 21 December 2006, the appellant concealed himself in one of the toilet cubicles in the ladies’ toilet, and locked the door. When the first victim entered the adjacent cubicle and was seated she heard a click from above and noticed a flash. She left. Soon after, the second victim entered the toilets and entered the adjacent cubicle. She also heard a click and saw a flash. She realised what had occurred and contacted security. The appellant was apprehended in the toilet with two pornographic magazines and a Polaroid camera. He had failed to take any photographs because he did not understand how to use the camera.
The sentencing decision
[4]       Judge Butler noted the proximity of the offending to the appellant’s release from prison, and his long list of previous convictions. These included at least four other episodes of similar offending dating back to 2000. He also noted that both the pre-sentence report and psychological report assessed the appellant as being at a high risk of reoffending. He accepted that it was the appellant’s alcohol consumption that triggered the offending.
[5]       The Judge identified the main aggravating features as being the proximity of the similar offending to the appellant’s release from prison, that he was in breach of a trespass order, and the gross breach of privacy involved. In mitigation, he accepted the guilty plea and the appellant’s genuine wish to try and stop offending in this way. He also accepted his remorse, but noted the appellant in the past had failed to follow through on opportunities for assistance.
[6]       The Judge took the burglary charge as the lead offence and adopted a starting point…

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 Ford

Details

AGLC: R v Ford [2008] NZCA 64
Case: [2008] NZCA 64
Decision Date: 18 March 2008

CaseChat Overview and Summary

The case of R v Ford before the Court of Appeal of New Zealand involved an appeal against the appellant's sentence. Ford was sentenced to two years and three months' imprisonment on charges of attempting to make intimate visual recordings and burglary. The appellant argued that the sentence was manifestly excessive and should have been home detention instead, to enable rehabilitation options to be pursued.

The primary legal issue was whether the sentence imposed by the Judge was manifestly excessive, and whether the Judge should have considered a sentence of home detention instead. The Court considered the relevant sentencing principles under the Sentencing Act 2002 and the context of the appellant's offending and personal circumstances.

The Court found that the Judge should have made a more generous allowance for the mitigating factors, such as the appellant's early guilty plea, remorse, and genuine efforts towards rehabilitation. The Court concluded that an appropriate allowance would have been one-third off the lead sentence, resulting in a sentence of two years' imprisonment. However, home detention was available in this case, and the Court decided it was in society's interests to give the appellant a "last opportunity" for rehabilitation. The Court substituted a sentence of eight months' home detention, with additional conditions to ensure the appellant's rehabilitation and reintegration into society.

The Court of Appeal allowed the appeal against sentence, quashed the original sentences, and imposed a sentence of eight months' home detention, concurrent on each charge, with additional conditions as outlined in the judgment.

Orders