R v Horrie - [2010] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND
CA650/2009
[2010] NZCA 51
BETWEENTHE QUEEN

Appellant

ANDWAYNE ALAN HORRIE

Respondent

Hearing:24 February 2010

Court:Baragwanath, Potter and Ronald Young JJ
Counsel:S B Edwards for Appellant

C D Bean for Respondent

Judgment:4 March 2010 at 11am

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.
B The appeal against sentence is allowed.
CThe concurrent sentence of two years and three months’ imprisonment is quashed.
DA cumulative sentence of eighteen months’ imprisonment is imposed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        On 25 April 2008 the respondent went to the victim’s home armed with a knife. He tied the victim’s hands and feet with ties he had brought to the house and then threatened him with a knife. He ultimately pleaded guilty to aggravated burglary shortly before his trial was due to be heard in August 2009.
[2]        On 29 April 2008 the respondent forced his way into the same victim’s house and attacked the victim, severely beating him with a cricket bat. The respondent pleaded guilty to aggravated burglary, causing grievous bodily harm with intent and threatening to kill. On 18 May 2009 he was sentenced to four years’ imprisonment for this offending.
[3]        Some months later on 19 September 2009 the respondent was sentenced for the 25 April 2008 offending. Judge Tompkins, the sentencing Judge on both occasions, sentenced the respondent to two years and three months’ imprisonment for the 25 April offending concurrent with the earlier-imposed four-year sentence in respect of the 29 April offending.
[4]        The Crown applies for leave to appeal against the respondent’s sentence. We grant leave.
[5]        The Crown says that a concurrent sentence for the 25 April offending failed to recognise this Court’s direction in R v Xie.[1] The Crown submits that a cumulative sentence should have been imposed for the 25 April offending and, given that this is a Crown appeal, a further 18 months’ imprisonment should be added to the four-year sentence to reflect the overall criminality of the offending.
[1]R v Xie [2007] 2 NZLR 240.
[6]        No issue is taken in this appeal with the sentences of four years, and two years, three months’ imprisonment for the respective offending on 29 and 25 April. The appellant’s submission is that four years’ imprisonment does not fairly reflect the overall criminality.
Discussion
[7]        In deciding whether to make the sentence for the 29 April 2008 offending concurrent or cumulative the Judge said:
[6]         The primary issue at today’s sentencing is whether as sought by the Crown a cumulative term should be imposed, or whether as sought by Mr Bean on behalf of Mr Horrie, a concurrent term of imprisonment should be imposed. Having considered the links between this offending and the subsequent offending, in my view it properly forms one sequence of events, albeit interrupted by some four days given that the motivation and background to the offending was identical, and given…

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 Horrie

Details

AGLC: R v Horrie [2010] NZCA 51
Case: [2010] NZCA 51
Decision Date: 4 March 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an appeal by the Crown against the sentence imposed on Wayne Alan Horrie for aggravated burglary and related offences. Horrie had been sentenced to two years and three months' imprisonment for an incident on 25 April 2008, and four years for an incident on 29 April 2008, with the sentences running concurrently. The Crown argued that the concurrent sentence did not adequately reflect the totality of Horrie's offending and sought an increased sentence. The court granted leave to appeal and allowed the appeal, replacing the concurrent sentence with a cumulative sentence of 18 months for the 25 April 2008 offence, to be added to the existing four-year sentence. The court emphasised the importance of ensuring that the total sentence reflects the overall criminality of the offending and the offender, in line with the principles set out in R v Xie. The court also expressed concern about the lack of assessment and treatment for Horrie's potential neurological issues stemming from head injuries suffered prior to his offending.

The central legal issue was whether the original sentence adequately reflected the totality of Horrie's offending. The court considered the principles for sentencing multiple offences under the Sentencing Act 2002 and noted that the total sentence must reflect the overall criminality. The court found that the concurrent sentence did not achieve this, as it did not sufficiently account for the two separate but related incidents. The court also highlighted the importance of assessing and treating Horrie's potential neurological issues, which may have contributed to his offending, and ordered that such assessments should be conducted.

Orders