R v Thomas - [2013] NZCA 133

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA461/2012
[2013] NZCA 133

BETWEEN THE QUEEN
Appellant

AND EDWARD ZBEDO THOMAS
Respondent

Hearing: 19 April 2013

Court: Randerson, Harrison and Stevens JJ

Counsel: M D Downs for Appellant
M N Pecotic for Respondent

Judgment: 7 May 2013 at 11:00am

JUDGMENT OF THE COURT

AThe appellant is granted an extension of time to appeal.
BThe appellant is granted leave to appeal and the appeal is allowed.
CThe sentences imposed on the respondent in the District Court on 19 May 2011 of four years imprisonment for aggravated burglary and arson are quashed.
DA sentence of five and a half years imprisonment is substituted on each of the aggravated burglary charges and on the charge of arson.
EThe sentence of one years imprisonment on the charge of assault with a weapon is undisturbed.
FAll sentences are to be served concurrently.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

This appeal against sentence by the Solicitor-General raises a novel question. The respondent, Mr Thomas, was charged along with three other men, with aggravated burglary, assault with a weapon and arson. He received a significant discount when sentenced in the District Court on the basis of his agreement that he would assist the police in the prosecution of his co-offenders. As matters transpired, Mr Thomas did not provide the assistance he had promised. The issue is whether this Court should increase the sentence on a Solicitor-General’s appeal on the ground that the sentence was manifestly inadequate.

Background facts

In the early hours of the morning of 10 April 2010, a group of offenders broke into an apartment in an Auckland suburb. They did so for the purpose of retrieving a cellphone which they thought had been stolen from one of their friends. The victim was awoken by the sound of the front door breaking. He confronted the intruders, armed with a baseball bat. According to the victim’s evidence, one of the men in the group swung a machete at him, striking him in the arm with the side of the weapon. The victim was able to escape without further injury. The offenders took a number of items from the apartment which was later set alight and badly damaged. The cost of repairs amounted to nearly $60,000.
When interviewed by the police on video on 16 April 2010, Mr Thomas admitted it was he who had kicked down the door of the apartment. He denied taking any weapons to the address but admitted picking up a pole from inside the apartment. He also admitted lighting the fire.
Mr Thomas and the three other men (Messrs Tagica, Langi and Holani) were all charged with aggravated burglary (two counts), and assault with a weapon. Initially, all four were also charged with arson but the prosecution on that charge ultimately proceeded against Mr Thomas alone.
The sequence of events thereafter is best described in the form of a chronology:
26…

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 Thomas

Details

AGLC: R v Thomas [2013] NZCA 133
Case: [2013] NZCA 133
Decision Date: 7 May 2013

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Thomas involved the appellant, the Solicitor-General, appealing against the sentence imposed on the respondent, Edward Zbedo Thomas, by the District Court. Thomas was found guilty of aggravated burglary, arson, and assault with a weapon. The appeal centered on whether the sentence of four years imprisonment was manifestly inadequate given Thomas's failure to provide the promised assistance to the police in prosecuting his co-offenders. The Court of Appeal found that Thomas had deliberately refused to provide the promised evidence, resulting in a sentence based on a false premise. The Court granted the Solicitor-General's appeal, quashed the original sentences, and imposed a new sentence of five and a half years imprisonment for the aggravated burglary and arson charges, to be served concurrently with the one-year sentence for assault with a weapon.

The Court's reasoning was based on the principle that a significant sentencing discount should not be retained if the promised assistance is not provided. The Court emphasized that the power to increase a sentence in such circumstances should be exercised sparingly and only when the integrity of the administration of justice is at stake. The Court found that Thomas had deliberately refused to give evidence as promised, and his actions had led to a manifestly inadequate sentence. However, the Court also recognized that Thomas's statement had some value in influencing the guilty pleas of his co-offenders. The increased sentence of 18 months imprisonment reflected the partial breach of the undertaking and the limited assistance actually provided. The Court granted an extension of time to appeal and leave to appeal, resulting in the substitution of the original sentences with the new sentences as outlined.

Orders