R v Paton - [2009] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 771/2008
[2009] NZCA 155
THE QUEEN
v
GILLIAN THELMA PATON
Hearing:2 April 2009

Court:Robertson, Gendall and Keane JJ
Counsel:W C Pyke for Appellant

N P Chisnall for Crown

Judgment:29 April 2009 at 3 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
BSentence of four years six months’ imprisonment imposed for injuring with intent to cause grievous bodily harm quashed and sentence of three years nine months’ imprisonment substituted.
CSentence of four months’ imprisonment for theft and misuse of credit card imposed cumulatively made concurrent.
DSentence in all other respects will stand.

____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
[1]        On 14 November 2008 Gillian Paton was sentenced in the District Court, Hamilton, to four and a half years’ imprisonment for injuring her former partner, Scott Evans, on 9 October 2006, with intent to cause him grievous bodily harm.
[2]        Ms Paton was sentenced concurrently to three months’ imprisonment for a related theft that evening, and to four months’ imprisonment, cumulatively, for earlier offending: theft of Mr Evans’ credit card on 8 September 2006 and use of it seven times, and attempted use of it eleven times, between 8 - 11 September 2006.
[3]        On this appeal Ms Paton contends that the sentence imposed on her for her principal offence was manifestly excessive. The sentencing Judge, Judge Wolff, she contends, took too high a starting point, six years. He gave her an inadequate one sixth discount for her plea, one year. He gave her an insufficient six month discount for her condition, as she contends it was, at the time of the offence: that known as battered woman syndrome.
[4]        In addition, Ms Paton contends, the four month sentence relating to the stolen credit card should have been concurrent, not cumulative.
[5]        Ms Paton did not originally put in issue so directly disparity between the sentence imposed on her for her principal offence and that imposed on her co‑offender Daniel Thompson, also four and a half years imprisonment, though he had elected to go to trial and had nothing that was mitigating. That did become a live issue on the appeal.
[6]        The Crown’s position is that the sentence imposed involved no error of principle and was not manifestly excessive. Ms Paton’s principal offence was serious and called for a commensurate response. The Judge aligned Mr Thompson’s sentence to that he imposed on Ms Paton. No disparity resulted.
Context
[7]        Ms Paton and Mr Evans met, and began living together immediately, in August – September 2003. Their relationship proved highly volatile. They were as much apart as together. But for this offending they might not have parted finally even then.
[8]        Throughout their relationship both took the full array of illicit drugs and Mr Evans was violent. In the 12 months preceding this offending he assaulted Ms Paton at least four times and at the date of the offending stood charged with two offences against her on 28…

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 Paton

Details

AGLC: R v Paton [2009] NZCA 155
Case: [2009] NZCA 155
Decision Date: 29 April 2009

CaseChat Overview and Summary

This appeal was against sentence. The appellant, Gillian Thelma Paton, was convicted in the District Court of injuring her former partner, Scott Evans, with intent to cause him grievous bodily harm. She was also convicted of the theft of Mr Evans' credit card and of using it seven times, and attempting to use it eleven times, between 8 and 11 September 2006. The appeal was against the sentence of four years and six months' imprisonment imposed for the principal offence, against the sentence of four months' imprisonment imposed for the theft and misuse of credit card and against the manner in which those two sentences were ordered. The Crown's position was that the sentence imposed involved no error of principle and was not manifestly excessive. The Court of Appeal disagreed. The starting point of six years was too high. The appellant's plea and her condition at the time of the offence warranted a greater discount. The sentence of four months' imprisonment imposed for the theft and misuse of credit card should be ordered concurrently, not cumulatively. The Court of Appeal substituted a sentence of three years nine months' imprisonment for the principal offence and ordered that the sentence of four months' imprisonment imposed for the theft and misuse of credit card be concurrent, not cumulative.

Orders