R v Norman - [2007] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND
CA301/07
[2007] NZCA 351
THE QUEEN
v
SAMANTHA NANCY NORMAN
Hearing:23 July 2007

Court:Wilson, Panckhurst and Venning JJ
Counsel:A E Stevens for Appellant

D La Hood for Crown

Judgment:15 August 2007 at 11am

JUDGMENT OF THE COURT

AAPPEAL AGAINST SENTENCE ALLOWED AND SENTENCE OF EIGHT MONTHS IMPRISONMENT QUASHED.

BIn substitution, appellant ordered to undertake 300 hours community service and to be subject to supervision for nine months.

____________________________________________________________________
REASONS OF THE COURT
(Given by Wilson J)
Introduction
[1]       The appellant appeals against a sentence of eight months imprisonment, with leave to apply for home detention, imposed by Judge A D Garland in the District Court at Dunedin on 22 June 2007.
[2]       This sentence was consequent upon the conviction of the appellant, following a jury trial, of one count of injuring with intent to injure (s 189(2) of the Crimes Act 1961). At the commencement of the trial, the appellant had entered a plea of guilty to an alternative charge of common assault under s 196 of the Crimes Act. She was acquitted by the jury of more serious charges relating to being a party to a vicious attack by two male co-accused on the victim’s husband.
[3]       A female co-accused was convicted of the same charge as the appellant. Unlike the appellant, the co-accused had been in custody pending the trial. By the time of sentencing she had already served the twelve months imprisonment to which she was sentenced and was therefore entitled to immediate release.
[4]       The appellant appeals against the sentence on the grounds that a sentence of imprisonment was inappropriate or wrong in principle. In response, the Crown submits that the Judge was right to conclude that imprisonment was the only sentence which would meet the sentencing principles of denunciation and deterrence.
The facts
[5]       Shortly after midnight on the night of 7-8 October 2006, the victims came across the appellant and her co-accused standing on a footpath.
[6]       At that time, the appellant and her female co-accused were involved in a verbal dispute, using bad language. They directed abuse at the female victim who, understandably, told them to desist.
[7]       Without warning, the female co-accused then punched the female victim twice in the face, striking her in the region of her eyes, and the appellant joined in the attack. They then both continued to punch the victim about the face, as many as ten or twelve times. The victim tried to protect herself but, as a result of the number of punches and the force behind them, was knocked to the ground.
[8]       As a consequence of this attack, the victim suffered severe bruising to her right eye which proved to be very painful. The swelling lasted two to three weeks but the eye remained painful for some two months after the attack. The physical injuries did however resolve without any long-term effects.
[9]       The victim’s husband was less fortunate. He suffered very severe injuries which have…

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 Norman

Details

AGLC: R v Norman [2007] NZCA 351
Case: [2007] NZCA 351
Decision Date: 15 August 2007

CaseChat Overview and Summary

In the case of R v Norman, the appellant was convicted of injuring with intent to injure, a charge under section 189(2) of the Crimes Act 1961. The conviction followed a jury trial where the appellant was acquitted of more serious charges related to a violent attack on the victim’s husband by two male co-accused. The female co-accused was also convicted of the same charge but had already served her sentence and was entitled to immediate release. The appellant appealed against the eight-month imprisonment sentence, arguing that imprisonment was inappropriate or wrong in principle. The Crown argued that imprisonment was necessary to meet the sentencing principles of denunciation and deterrence.

The legal issues before the court were whether the sentencing judge was justified in using the guideline judgment in R v Taueki as a starting point, and whether the sentence imposed complied with the principles prescribed by the Sentencing Act 2002. The appellant's counsel submitted that the sentence must reflect the nature and gravity of the offence, the circumstances of the offender, and the behaviour of the offender subsequent to the commission of the offence. They argued that the appellant's age, lack of previous convictions, and display of genuine remorse should be considered mitigating factors. The Crown argued that the sentence was justified by the need for denunciation and deterrence, and that the guideline in Taueki was appropriate for the serious nature of the violence involved.

The Court of Appeal found that while imprisonment was appropriate for the nature of the offence, the statutory directions to impose the least restrictive outcome and to assess whether the purposes of sentencing could be achieved by a sentence other than imprisonment should have been considered. The court concluded that the sentence of community service and supervision adequately achieved the purposes of denunciation and deterrence. The appeal was allowed, and the sentence of imprisonment was quashed. In its place, the appellant was ordered to undertake 300 hours of community service and to be subject to supervision for nine months.

Orders