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R v Shirley

R v Shirley

Case [2009] NZCA 216 29 May 2009

Assault with a Weapon

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA764/2008
[2009] NZCA 216
THE QUEEN
v
NATHAN WILLIAM SHIRLEY
Hearing:26 May 2009

Court:Hammond, Ronald Young and Clifford JJ
Counsel:R G Glover for Appellant

G H Allan for Crown

Judgment:29 May 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1]       Mr Shirley was sentenced by Judge Doherty in the District Court at Christchurch to three years’ imprisonment on a charge of aggravated burglary. Mr Shirley appeals against that sentence. He says that sentence was manifestly excessive, particularly given a successful restorative justice process.
Background
[2]       Just after midnight on 8 April 2007 Mr Shirley went to an address in Linwood, Christchurch where the victim of the offending, a Mr Shane Smith, resided. Also residing at that address were Mr Smith’s partner (Sharon Holt), Ms Holt’s daughter Kirstie Finnie, Ms Finnie’s partner Kyle Shirley (Mr Shirley’s elder brother) and Kirstie and Kyle’s baby daughter. Mr Shirley was looking for Kyle. He was carrying a baseball bat. He was acting aggressively. When told by Mr Smith not to come on to the property again, Mr Shirley threatened Mr Smith with violence and swung the bat at him. Mr Smith was able to grab the bat off Mr Shirley who then left the address.
[3]       Some two hours later, Mr Shirley returned to the Linwood address with his younger brother, Moncello. He was that time armed with a large kitchen knife with a blade approximately 25cm long. Moncello was armed with a wooden chair leg that had a large metal screw protruding from it.
[4]       The Crown case at trial, based on the evidence of Ms Finnie, was that Ms Finnie went to the door, found Moncello there, assumed Moncello might have wanted a place to stay the night and so opened the door. At that juncture Mr Shirley appeared from behind his younger brother and entered the house with the knife.
[5]       Mr Shirley and Moncello were told to go away. Moncello proceeded to strike a nearby patio table with the wooden chair leg he was carrying, causing it to break. Once inside the house Mr Shirley brandished his knife at Mr Smith and said that he was going to “fucking kill you”.
[6]       Mr Smith’s evidence at trial was that he really believed Mr Shirley and Moncello were going to kill him. He repeated those comments in his victim impact statement.
[7]       Mr Smith ran into his bedroom, where his partner was, and closed the door. Moncello then repeatedly struck at the bedroom door causing several holes. Mr Shirley and Moncello left the premises once they understood the Police were being called.
[8]       Mr Shirley pleaded guilty after depositions to charges of threatening to kill and assault with a weapon. He defended the charge of aggravated burglary, on the basis that his entry into the house was authorised. He was found guilty at trial.
[9]       Prior to his trial…

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 Shirley

Details

AGLC: R v Shirley [2009] NZCA 216
Case: [2009] NZCA 216
Decision Date: 29 May 2009

CaseChat Overview and Summary

The appeal by Nathan William Shirley against his sentence of three years’ imprisonment for aggravated burglary was heard by the Court of Appeal of New Zealand. Shirley had pleaded guilty to charges of threatening to kill and assault with a weapon but contested the charge of aggravated burglary. The appeal centred around the severity of the sentence imposed by Judge Doherty in the District Court at Christchurch, arguing that it was manifestly excessive, especially in light of the successful restorative justice process.

The legal issues before the court included whether the starting point adopted by the Judge for the aggravated burglary was too high, if an appropriate discount was applied for Shirley’s participation in the restorative justice program, and whether the Judge should have considered a sentence of home detention. Initially, Shirley’s counsel argued that the starting point was inappropriate and that the discount for the restorative justice process was insufficient. However, before the hearing, the argument regarding the starting point was abandoned, leaving only the adequacy of the discount for the restorative justice program.

The court examined the circumstances of the offence, which involved Shirley returning to a residence with a knife after being warned off earlier, threatening the occupant with violence, and causing significant fear. The Judge had considered various aggravating factors, such as the premeditation and the use of a ruse to gain entry. The starting point for the sentence was determined by comparing the case to other similar instances of aggravated burglary and was deemed appropriate by the court. The court found that the Judge had appropriately recognised Shirley’s participation in the restorative justice conference by applying a six-month discount. The court held that the discount was sufficient and that the statutory purposes of denunciation and deterrence could not be overlooked, especially given the violent nature of the offence.

In conclusion, the appeal was dismissed. The Court of Appeal upheld the sentence imposed by the District Court, finding that the Judge had appropriately balanced the outcomes of the restorative justice process with the need for a firm response to serious violence.

Orders