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 on a balaclava.

[8]    Inside the house, you remained close-by as the co-offender held a knife to the throat of the main victim, punched the victim twice in the mouth breaking teeth and fracturing his jaw. You were nearby when the co-offender dragged this victim into another room, where there was another man, and threatened to stab both of them.

[9]    The co-offender told these people they were going to pay for a person having been with his girlfriend. This led to both you and the co-offender ransacking the house. You kept guard on the two men while the co-offender looked for money and other items of value, as you knew he was going to do.

[10]   Both you and the co-offender made the woman from the address load stolen property into bags and take it to the car you had come in.

[11]   You told the two men they were lucky because you had seen the co-offender do worse things. You told them you had seen him chop people’s fingers off.

[12]   At one point you held a victim’s hand on a bedside table and threatened to cut it off with a sword you had found at the address.

[13]   As you were leaving the house, you said to one of the victims “if you ring the cops, I will burn the house down and kill you”.

[14]   You both eventually left the property, taking the victim’s little dog and the woman with you. You kept the woman with you for that night and for a number of hours the next day as you drove around Christchurch and outlying areas. It was around that time you removed the impounded motorcycle. You dropped the woman off at an Addington address that afternoon. At that address, you told someone to keep an eye on her. She remained at that Addington address until the following morning. You returned to that address in the morning but left after a short time. It was then she found herself alone and ran off with the dog and asked for help.

[15]   It is on that basis that I have just described that I considered you were fully and knowingly involved in serious offending with a number of aggravating features. As I said before, perhaps being slightly generous to you, I would regard your co-offender as being rather more culpable because he was an instigator of the whole episode and because it was the co-offender who actually carried out the violent assault within the house, the level of which you may not have fully anticipated although you obviously understood it was more than just a possibility.

[16]   The property taken from the home was of significant value. The physical injuries to the main victim were serious. The emotional harm done to both him and his then girlfriend was significant.

[17]   The Crown suggested a starting point for the lead offence of aggravated burglary in the range of seven to eight years. Your counsel suggested that, on a basis of a significant difference in your roles, the starting point should be four to six years. I did not and do not accept the differences were as significant as that. I consider you were a full participant in serious offending and, on the basis of that offending, an appropriate starting point for the lead offence of aggravated burglary would be seven years. There would have to be an uplift for your involvement in the unlawful detention. The length of that detention is a significant aggravating feature.

[18]   With an uplift for the further offending, the starting point which I arrived at was eight years’ imprisonment.

[19]   There needs to be an uplift on account of your previous criminal offending. Significantly, this includes recent convictions for wounding with intent and assault with intent to injure. However, your previous offending has, I suspect, been inherent in your being in a position where you were prospecting for a particular gang and became involved in this serious and irrational criminal offending. Because of these aggravating features relating to you personally, the appropriate sentence, before guilty pleas, as I indicated, would be eight and a half years.

[20]   As far as your attitude is concerned, the report says you are determined to be available for your now five year old son and his grandfather, although the report refers to understandable reasons, given your previous history, as to why the Court should be sceptical and doubtful as to whether your expressed motivation is genuine and should be relied upon. Ultimately, your actions will speak louder than your words.

[21]   In this regard, I also acknowledge that, when I gave my sentence indication, I said there was some potential for discount if your pre-sentence report indicated there had been some significant changes in your outlook towards your defending, your

understanding of the suffering you have caused others and some genuine progress to making a change in your life.

[22]   Although the pre-sentence report has given me no such clear indication, a significant development has taken place which I need to take into account.

[23]     […].

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[26]     […].1

[27]     […].2

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[30]   Mr Francis, please stand. On the charge of aggravated burglary, you are convicted and sentenced to imprisonment for four years.

[31]   On the charge of unlawful detainment, you are convicted and sentenced to imprisonment for a period of three years. That sentence is concurrent with the other sentence so that your effective sentence of imprisonment is four years.

[32]   On the charge of unlawfully removing an impounded vehicle, you are convicted and discharged.

[33]     […].

1      […].

2      […].

[34]   Mr Francis, I am now required to give you a second strike warning for serious violent offending. Your first strike warning accompanied the three and a half years’ prison sentence you received in 2011. [The Judge gives the second strike warning].

[35]That completes my sentencing. You may stand down.

[36]   In recognition of the suppression order, I have deleted references to certain information from this judgment.

Solicitors:

Crown Solicitor’s Office, Raymond Donnelly & Co., Christchurch R G Glover, Barrister, Christchurch.