R v McCord - [2007] NZCA 312

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/06 [2007] NZCA 312

THE QUEEN

EUGENE HAPI MCCORD

Hearing: 28 March 2007

Court: O'Regan, Ellen France and Wilson JJ
Counsel: M B Dodds for Appellant

S B Edwards for Crown

Judgment: 24 July 2007 at 3pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Wilson J)

R V EUGENE HAPI MCCORD CA CA412/06 [24 July 2007]

Introduction

[1] On 7 September 2006 the appellant was sentenced by Judge D J McDonald in the Kaikohe District Court to three years six months imprisonment for one count of kidnapping, with concurrent terms for single counts of wounding with intent to injure (two years), male assaults female (one year) and sexual intercourse with a person under 16 (one year). Mr McCord appealed against his sentence on the basis that it was manifestly excessive and arose from an incorrect assessment of the facts by the sentencing Judge.

Background

[2] The appellant originally faced seven counts. Two were representative charges of sexual intercourse with a person under 16, relating to his conduct over two separate time periods: 1 April to 19 May 2005 and 20 May to 14 August 2005. During this time, he was in a sexual relationship with the (at the time) 15-year-old complainant. The appellant was discharged on the first count after it was shown that he was in prison during the relevant time period.

[3] A further two counts were laid in respect of events on 11 August 2005. On that day, the appellant punched the complainant in the head as they travelled by car between Auckland and Whangarei. He was charged with the alternative counts of male assaults female and injuring with intent to injure. On arraignment on 22 May 2006, the appellant pleaded guilty to the charge of male assaults female.

[4] The final three counts, wounding with intent to injure, kidnapping, and sexual violation by rape, arose out of events on 14 August 2005. On that day, the appellant, the complainant and several others were driving in a van between Paihia and Kawakawa. After some trouble in the van, the driver stopped and told the appellant and others to get out. The van drove off, whereupon the appellant threw the complainant down a metal bank, causing her to hit and wound her head. He proceeded to punch and beat her. The head wound sustained by the complainant led

to the charge of wounding with intent to injure, to which the appellant also pleaded guilty on 22 May 2006.

[5] The appellant then dragged the complainant back up the bank and flagged down a car. The driver took them to a Kawakawa service station, where they managed to get another man to drive them to the home of a relative of the appellant on the outskirts of Kawakawa. When they arrived,…

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 McCord

Details

AGLC: R v McCord [2007] NZCA 312
Case: [2007] NZCA 312
Decision Date: 24 July 2007

CaseChat Overview and Summary

Eugene Hapi McCord appealed against his sentence of three years six months imprisonment for kidnapping, and concurrent terms for wounding with intent to injure, male assaults female, and sexual intercourse with a person under 16. He argued that the sentence was manifestly excessive and arose from an incorrect assessment of the facts by the sentencing Judge. The Court of Appeal considered the appellant's arguments and found that the sentence was not manifestly excessive. The starting point of three and a half years was appropriate for the totality of the offending. The discount for the appellant's guilty pleas was also appropriate, given their timing. The Court of Appeal found that the sentence imposed on the appellant did properly reflect the criminality of his offending. The appeal was dismissed, and leave to appeal was granted.

Orders