R v Francis - [2016] NZHC 646

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-001603

[2016] NZHC 646

THE QUEEN

v

LINDSAY TREVOR FRANCIS

Hearing: 12 April 2016

Appearances:

K B Bell for the Crown

R G Glover for the Defendant

Judgment:

12 April 2016

SENTENCING NOTES OF NATION J

[1] Mr Francis, on 12 February 2016, at your request, I indicated what your sentence would be if you pleaded guilty to a charge of aggravated burglary and another charge of unlawful detention. The maximum sentence on each of those two charges was 14 years’ imprisonment. The sentence indication was also to deal with the charge of unlawfully removing an impounded vehicle. The maximum sentence for that offence was a $5,000 fine.

[2] When I gave you my sentence indication, I said there would be potential for some further uplift if extremely negative information about you and your attitude was provided to the Court through the pre-sentence report.

R v FRANCIS [2016] NZHC 646 [12 April 2016]

[3] The pre-sentence report refers to your previous serious violent offending, your problems with drugs and alcohol, and the way all that has been associated with poor decision making and poor choice of associates. That background was apparent to me at the time I gave my sentence indication.

[4] You pleaded guilty on 19 February 2016. What I said in explaining the basis for my indication could not be reported at the time. It is important I go through that information again at this public sitting of the Court.

[5] You were an active participant with a defined role in what you knew would be the invasion of someone’s home at night, the violent assault of people within the home and the theft from it of property of significant value. You also had an active role in taking away from the home one of the female inhabitants and then holding her at another address or addresses for at least 16 hours and probably through to the following day when she eventually found herself alone and was able to escape.

[6] You went with a co-offender and an unknown third person to a point where the co-offender had arranged to meet his partner. He was jealous and angry because he thought she had been with another man. She had been visiting a man, that man’s partner and another man at the address where the violence later occurred. You knew of the co-offender’s propensity for violence. You were with him, showing you were doing so as a member or a prospect of a gang.

[7] Once you got to the meeting point, you saw the co-offender being violent to his partner. You both approached a woman from the address who had accompanied her to the meeting place. You joined with the co-offender in demanding she take you back to that house. You were both carrying knives with six inch blades, he had…

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 Francis

Details

AGLC: R v Francis [2016] NZHC 646
Case: [2016] NZHC 646
Decision Date: 12 April 2016

CaseChat Overview and Summary

Lindsay Trevor Francis was charged with aggravated burglary, unlawful detention, and unlawfully removing an impounded vehicle. The case was heard in the High Court of New Zealand, Christchurch Registry, and judgment was given on 12 April 2016. The defendant pleaded guilty to the charges of aggravated burglary and unlawful detention. The court was required to determine the appropriate sentence for the defendant, taking into consideration the nature and circumstances of the offences, the defendant's criminal history, and any mitigating or aggravating factors.

The court found that the defendant was a full participant in serious offending, which included a violent assault on the victims, ransacking of the house, and unlawful detention of one of the female inhabitants. The court also noted the defendant's previous criminal history, including recent convictions for wounding with intent and assault with intent to injure. The court determined an appropriate starting point for the lead offence of aggravated burglary to be seven years' imprisonment, with an uplift for the unlawful detention. After considering the defendant's personal aggravating features and potential for discount based on the pre-sentence report, the court ultimately sentenced the defendant to four years' imprisonment for aggravated burglary and three years' imprisonment for unlawful detention, to run concurrently, resulting in an effective sentence of four years' imprisonment.

On the charge of unlawfully removing an impounded vehicle, the defendant was convicted and discharged. The court also issued a second strike warning for serious violent offending, as the defendant had previously received a strike warning in 2011. This case demonstrates the court's consideration of the defendant's criminal history, the nature and circumstances of the offences, and any mitigating or aggravating factors when determining an appropriate sentence.

Orders