R v Goldstone - [2007] NZCA 321

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/07 [2007] NZCA 321

THE QUEEN

v

JOHN GOLDSTONE

Hearing: 18 July 2007
Court: Arnold, Potter and Venning JJ Counsel: N Cooke for Appellant
M T Davies for Crown

Judgment: 27 July 2007 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

R V GOLDSTONE CA CA151/07 27 July 2007

Introduction

[1] The appellant entered a plea of guilty to one charge of injuring with intent to injure contrary to s 189(2) of the Crimes Act 1961. As he did not accept the police summary of facts upon which he was to be sentenced, a disputed facts hearing was held.

[2] In sentencing the appellant, Judge Blackie took a starting point between two and two and a half years imprisonment, which he reduced to one year eight months to reflect the appellant’s guilty plea and other mitigating factors.

[3] The appellant now appeals against that sentence.

Factual background

[4] The factual background can be briefly stated. The appellant was employed as a construction worker. He was working on the construction of a motorway adjacent to a property which was rented to the victim, a 61 year old man.

[5] The victim was required to vacate his property to permit the construction work to proceed. He went to the property on the day of the incident to remove the last of his effects. A friend was helping him. While the victim and his friend were at the property, the appellant approached the victim and, after a verbal exchange, began to push, punch and kick him. The appellant then left the scene and the victim and his friend continued to gather the victim’s belongings. The victim also did some tidying with a broom. Shortly after the appellant returned, held the victim in a headlock, punched him, threw him to the ground and kicked him with his steel toed boots.

[6] The victim’s cries attracted the attention of some of the appellant’s work mates. They pulled the appellant off the victim. Despite being restrained, the appellant continued to lash out.

[7] The appellant’s explanation was that he had been told by his employer to watch out for unauthorised personnel on the site. He apparently assumed that the

victim and his friend were unauthorised personnel who were removing his employer’s property. He also said that he thought the broom was a weapon of some kind.

District Court

[8] We deal first with the disputed facts hearing and then with the sentencing.

Disputed facts hearing

[9] The disputed facts hearing focused on five questions: (a) Who started the fight?
(b) How many blows were struck?

(c) Was there any kicking while the victim was on the ground? (d) What was the duration of the incident?
(e) What was the nature of the victim’s injuries?

[10] Five witnesses gave evidence - the victim, his friend, a co-worker of the appellant, the site foreman and the appellant himself. Having…

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 Goldstone

Details

AGLC: R v Goldstone [2007] NZCA 321
Case: [2007] NZCA 321
Decision Date: 27 July 2007

CaseChat Overview and Summary

The appellant, John Goldstone, was convicted of injuring with intent to injure, contrary to section 189(2) of the Crimes Act 1961, and appealed against his sentence of one year and eight months imprisonment. The Court of Appeal of New Zealand heard the appeal and dismissed it. The appellant had entered a guilty plea to the charge but disputed the police summary of facts upon which he was to be sentenced, leading to a disputed facts hearing. At the sentencing, Judge Blackie took a starting point between two and two and a half years imprisonment, which he reduced to one year eight months to reflect the appellant's guilty plea and other mitigating factors.

The Court of Appeal considered the appellant's arguments that the Judge had erred in increasing the starting point after the disputed facts hearing and in failing to identify specifically the discounts relating to particular mitigating features. The Court found that the Judge had legitimately reassessed the appropriate starting point at the conclusion of the disputed facts hearing to reflect his greater understanding of the offending. The Court also found that the Judge's approach to quantifying the discount was appropriate, as precise, component-specific quantification is not required.

The Court of Appeal held that the sentencing Judge sufficiently explained the process by which he reached the end result, both in relation to the starting point and the discount. The Court was satisfied that the end result (one year eight months imprisonment) was within the range properly available to the Judge. Therefore, the appeal was dismissed.

The Court of Appeal's decision in this case highlights the importance of a sentencing judge's understanding of the offending and the roles of those involved in the incident. The Court also emphasised that a sentencing judge is not required to make specific deductions for individual mitigating circumstances, as long as the end result is appropriate and the process by which the sentence was reached is sufficiently explained.

Orders