R v Warne - [2007] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND
CA174/07
[2007] NZCA 353
THE QUEEN
v
BRENDON ALLAN WARNE
Hearing:26 July 2007

Court:Wilson, Panckhurst and Venning JJ
Appearances: V C Nisbet for Appellant

S B Edwards for Crown

Judgment:16 August 2007 at 10am

JUDGMENT OF THE COURT

THE APPEAL AGAINST A SENTENCE OF TWO YEARS THREE MONTHS IMPRISONMENT IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
ADEQUATE RECOGNITION OF A PLEA AND REPARATION?
[1]       The appellant pleaded guilty to a charge of threatening to make an accusation with intent to obtain a benefit, (blackmail), and was sentenced to 21 months imprisonment. In imposing sentence, the Chief High Court Judge, Randerson J, identified a starting-point of two and a half years imprisonment and made a reduction of nine months, in order to arrive at the effective term. This appeal against sentence represents a challenge to that reduction. Counsel maintains that the plea of guilty, and the payment of reparation in the sum of $4,000, warranted a greater reduction than the 30 per cent which was allowed by the Judge.
[2]       A second ground of appeal is that Randerson J was wrong to decline leave to apply for home detention.
The facts relevant to the offending
[3]       The appellant was charged that in January 2006 he threatened to make an accusation against the complainant with intent to extort a motor vehicle, or else the accusation would become the subject-matter of a complaint to the police.
[4]       The complainant was employed as a salesman in a car yard. On 20 January 2006 the appellant went to the yard and accused the complainant of having sexual intercourse with a girl aged 15 years. The complainant acknowledged that this had happened. The accused said he was a member of the local Black Power gang. He told the complainant that he knew where he (the complainant), and his parents, lived. The accused posed two options: either the complainant could secure two motor vehicles, one each for the appellant and the 15 year old girl; or a complaint would be laid with the police. The latter would result in a jail sentence and the complainant would be exposed to the attentions of Black Power members in prison.
[5]       The complainant was given until 27 January 2006 to obtain the two vehicles. The appellant gave the complainant a piece of paper upon which was written his first name and cellphone number so that the complainant could contact him. The appellant also told the complainant that he wanted a Nissan Skyline and that the girl required a “boy racer” type car.
[6]       On 24 January the appellant again visited the yard and told the complainant that only one motor vehicle was required. He said the girl had decided she did not wish to have one. He reiterated the requirement that the vehicle be available by 27 January. The complainant indicated that he did not have the ability to raise finance to pay for a vehicle, but the…

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 Warne

Details

AGLC: R v Warne [2007] NZCA 353
Case: [2007] NZCA 353
Decision Date: 16 August 2007

CaseChat Overview and Summary

The case of R v Warne was heard by the Court of Appeal of New Zealand, which was comprised of Wilson, Panckhurst, and Venning JJ. The appellant, Brendon Allan Warne, appealed against his sentence of two years and three months imprisonment, imposed after he pleaded guilty to blackmail. The appeal challenged both the adequacy of the reduction for his guilty plea and payment of reparation, and the decision to deny leave to apply for home detention. Counsel for the appellant argued that the reduction for his guilty plea and the payment of reparation warranted a greater reduction than the 30% allowed by the Judge. Additionally, it was argued that the Judge was wrong to decline leave to apply for home detention.

The appellant had threatened the complainant with intent to extort a motor vehicle, or else the accusation would become the subject-matter of a complaint to the police. The blackmail had a profound effect on the victim, who left his home town and commenced a new life outside New Zealand. The Judge adopted a starting-point of two and a half years imprisonment and made a reduction of nine months, arriving at the effective term of 21 months imprisonment. The appellant's counsel argued that the 30% reduction for the guilty plea and payment of reparation was insufficient. However, the court was not persuaded that the reduction was inadequate, as the plea was entered late and the payment of reparation was accompanied by a letter of apology.

Regarding the issue of home detention, the Judge declined leave to apply for it, considering the seriousness of the offending. The appellant's counsel argued that the Judge had failed to take into account the offender's personal circumstances as required by the Sentencing Act. However, the court found that the Judge had considered the appellant's circumstances and background earlier in his sentencing remarks and determined that the discretion was not wrongly exercised.

The Court of Appeal dismissed the appeal against sentence, holding that the reduction for the guilty plea and payment of reparation, as well as the decision to deny leave to apply for home detention, were within range and appropriate in the circumstances. The final orders were that the appeal against the sentence of two years and three months imprisonment was dismissed.

Orders