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R v Patrick

R v Patrick

Case [2008] NZCA 115 2 May 2008

Aggravated & Exemplary Damages

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA440/2007
[2008] NZCA 115
THE QUEEN
v
NEIL BARRY PATRICK
Hearing:3 March and 2 May 2008

Court:Chambers, Gendall and Harrison JJ
Counsel:W C Pyke for Appellant

M D Downs for Crown

Judgment:2 May 2008 at 3.30 pm

Reasons: 9 May 2008

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The sentence of four years’ imprisonment on the aggravated burglary charge is quashed. In substitution therefor, a sentence of two years, three months’ imprisonment is imposed, to be served concurrently with the sentence of ten months’ imprisonment on the possession of a weapon charge.

CThe appellant must report to the criminal section of the High Court at Auckland by 3 pm today to recommence serving his sentence of imprisonment.

REASONS OF THE COURT
(Given by Chambers J)
Aggravated burglary
[1]       Neil Patrick, the appellant, was, in 2006, living apart from his wife, Angela Patrick. One night in August 2006, Mr Patrick went to Mrs Patrick’s home, carrying a metal pipe with a chain on the end of it. He was intoxicated, having, he said, consumed both alcohol and a medication called Diazepam.
[2]       Mr Patrick smashed his way into the home, breaking a glass ranchslider door using the metal pipe. Mrs Patrick and the Patricks’ teenaged children were in the house asleep. So were Mrs Patrick’s sister and that sister’s baby. All the inhabitants were woken and terrified. At some point, Mr Patrick picked up a knife and wielded it. The inhabitants managed to barricade themselves into a bedroom. Mr Patrick tried to bash his way through the door. The family then ran out of that bedroom through another door and escaped to a neighbour’s house.
[3]       The police were called. They found Mr Patrick still in the house, hiding under a bed. He was still holding the metal pipe. The police charged Mr Patrick with aggravated burglary and possession of an offensive weapon.
[4]       A jury found Mr Patrick guilty on both counts. Judge Burnett, who had been the trial judge, subsequently sentenced him to four years’ imprisonment on the aggravated burglary count and ten months’ imprisonment on the possession of a weapon charge, the two sentences to be served concurrently. Originally, Mr Patrick appealed against both his convictions and the sentence. Subsequently, however, he abandoned the appeal against conviction. The sole issue on the appeal became whether the sentence imposed was manifestly excessive.
Was the sentence manifestly excessive?
The judge’s reasoning
[5]       Judge Burnett adopted a starting point of four and a half years’ imprisonment. The appellate authorities on which she primarily relied in reaching that starting point were R v Mako [2000] 2 NZLR 170, R v Watson CA224/03 24 October 2003, and R v Kaukau [2007] NZCA 66. She considered the fact the place burgled was “a private dwelling house” to be an aggravating factor. She also noted that the offending involved “a forced break-in into the victim’s home at 4 am where five…

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 Patrick

Details

AGLC: R v Patrick [2008] NZCA 115
Case: [2008] NZCA 115
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case of R v Patrick involved the appellant, Neil Barry Patrick, who was appealing against the sentence imposed by the High Court at Auckland. Patrick had been found guilty of aggravated burglary and possession of a weapon. He appealed against the four-year imprisonment sentence on the aggravated burglary charge and the ten-month imprisonment sentence on the possession of a weapon charge, which were to be served concurrently. The appeal focused solely on the excessiveness of the sentence. Patrick's counsel submitted that had trial counsel properly analysed the case, Patrick would have been advised to plead guilty, which would have resulted in an earlier plea and potentially a more favourable sentence.

The Court of Appeal found that the trial counsel's advice to Patrick was erroneous, as it led Patrick to believe he had a defence when he did not. The Court also found that the original starting point for the sentence was too high, and the mitigating factors, such as Patrick's lack of prior history of burglary or offensive behaviour, should have been taken into account. The Court of Appeal allowed the appeal against sentence and substituted a sentence of two years and three months' imprisonment for the four years' imprisonment Judge Burnett had imposed. The new sentence was to be served concurrently with the ten-month imprisonment sentence on the possession of a weapon charge.

The Court ordered that Patrick must report to the criminal section of the High Court at Auckland by 3 pm on the day of the judgment to recommence serving his sentence of imprisonment.

Orders