R v The Queen - [2012] NZHC 479

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE COMPLAINANT D PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-6868 [2012] NZHC 479

THE QUEEN

v

R

Hearing: 8 March 2012

Counsel: K Tustin for Prisoner
R B Annandale for Crown

Judgment: 8 March 2012

SENTENCE OF POTTER J

R V R HC HAM CRI-2010-019-6868 [8 March 2012]

Solicitors: Almao Douch, Hamilton – rba@almaodouch.co.nz

Copy to: K Tustin, Hamilton – k.tustin@xtra.co.nz

Introduction

[1] R appears for sentence on charges arising out of three primary sets of offending. In addition there is miscellaneous offending for which he is to be sentenced. The three primary sets of offending are:

a) Offending against his daughter on six discrete occasions between

2000 and 2010.

b) Unlawfully taking a motor vehicle from an address in Taumarunui on

19 November 2010.

c) A spree of offending on 31 March/1 April 2011 at Taumarunui, Te

Kuiti and Otorohanga.

[2] I summarise those charges in the following table. R has entered guilty pleas to all charges.

Charge Section Maximum penalty

Offending against daughter

Assault on a child x 2 194(a) Crimes Act

1961

2 years imprisonment

Unlawful taking a motor vehicle

Injuring with intent to injure x 4

Unlawfully taking a motor vehicle

189(2) Crimes Act

1961

226(1) Crimes Act

1961

5 years imprisonment

7 years imprisonment

“Spree” offending Unlawfully taking a motor vehicle x 2
Driving while disqualified x2
Failing to stop for red/blue lights

226(1) Crimes Act

1961

52(1) Land

Transport Act 1998

52(1)(c) Land

Transport Act 1998

7 years imprisonment

3 months imprisonment and at least 6 months disqualification

$2,000 fine

Aggravated robbery 235(c) Crimes Act

1961

Other offending Breach of home detention 80S Sentencing Act

2002

14 years imprisonment

1 year imprisonment or a

$2,000 fine

[3] Consequent upon R’s guilty pleas to Counts 1, 3, 4, 6, 8 and 10 in the

indictment charging offending against his daughter, the Crown offers no evidence on

the remaining counts in the indictment being Counts 2, 5, 7 and 9. The prisoner is discharged on those counts under s 347 of the Crimes Act.

[4] The Crown has applied to cancel a sentence of six months home detention and today applies to cancel a sentence of 180 hours community work imposed on R at the Taumarunui District Court on 21 February 2011.1 R breached the terms of the home detention sentence when he entered upon the spree offending on 31 March/1
April 2011. He does not oppose cancellation of those sentences. They are duly cancelled. As the result of the cancellation of those sentences it is necessary to resentence R on the following charges:

a) Driving with excess breath alcohol;

b) Possession of cannabis.

First Strike Warning

[5] The aggravated robbery offence under s 235(c) of the Crimes Act 1961 carries a maximum penalty of 14 years imprisonment and is a serious violent offence requiring that I give the prisoner a first strike warning which I now…

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 The Queen

Details

AGLC: R v The Queen [2012] NZHC 479
Case: [2012] NZHC 479
Decision Date: 8 March 2012

CaseChat Overview and Summary

In the case of R v The Queen, the defendant, R, appeared before the court for sentencing on various charges, including assaulting his daughter, unlawfully taking a motor vehicle, and a spree of offending on 31 March/1 April 2011. The legal issues the court had to decide were whether to impose a sentence of preventive detention and the appropriate sentence for the various charges. The court considered the purposes and principles of sentencing, including accountability, denunciation, deterrence, protection of the community, and rehabilitation. The court also considered the discretionary power vested in it by s 87 of the Sentencing Act to impose a sentence of preventive detention. After considering the aggravating and mitigating factors, the court decided on a sentence of nine years and six months imprisonment, with a minimum period of imprisonment of five and a half years. The court rejected the imposition of a sentence of preventive detention, stating that a lengthy determinate sentence is preferable if it provides adequate protection for society.

Orders