R v Wyatt - [2009] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND
CA406/2009
[2009] NZCA 464
THE QUEEN
v
NICHOLAS BRIAN WYATT
Hearing:29 September 2009

Court:Robertson, Chisholm and Priestley JJ
Counsel:P F Gorringe for Appellant

B D Tantrum for Crown

Judgment:8 October 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1]        The appellant had pleaded guilty to six charges he faced in the Hamilton District Court. He was convicted of threatening to kill, kidnapping, aggravated robbery, using an Eftpos card for pecuniary advantage, unlawfully taking a motor vehicle, and theft. Because the appellant’s criminal history raised preventive detention as an option, his sentencing was remanded to the High Court at Hamilton. Ronald Young J imposed sentences in June 2009: HC HAM CRI 2007-019-9805 10 June 2009.
[2]        The Judge saw the case as finely balanced so far as preventive detention was concerned. Because of the appellant’s age the Judge opted for a lengthy finite sentence.
[3]        Using the kidnapping charge for the lead sentence the Judge imposed a term of seven years and three months imprisonment. The aggravated robbery and threatening to kill counts were met by terms of four years and three years imprisonment respectively. The three lesser charges involving dishonesty resulted in sentences of six months’ imprisonment. All terms of imprisonment were to be served concurrently. The Judge imposed a minimum period of imprisonment of four years.
[4]        This appeal challenges the seven years three month term. There is no challenge to a minimum term of imprisonment being imposed which, the appellant contends, should be adjusted downwards if his appeal succeeds.
Background
[5]        The appellant’s offending in November 2007 was serious. In the early hours of the morning the victim was adjusting his car speakers in Cobham Drive, Hamilton. The appellant and his co-offender approached him. The appellant placed a knife at his throat, and ordered him into the vehicle. The co-offender too was holding a knife. The appellant held a knife at the victim’s throat and forced him to drive from Hamilton towards Cambridge, repeatedly threatening to kill him if he did not comply.
[6]        In a secluded area the appellant was forced, again on pain of death, to reveal his Eftpos card PIN number. The victim was then pushed into his vehicle’s boot and told he would be killed if he made a noise. The appellant drove the car to Cambridge where money was withdrawn from the victim’s account.
[7]        The appellant next drove the victim’s car towards Raglan at excessive speeds and pulled into a parking area off the highway. The victim was extracted from the boot and led up a walkway. He believed he was going to be killed and buried in the bush. The appellant and his co-offender then bound the victim’s hands and legs and pushed him down a slope into the bush. The two offenders drove the victim’s car back to Hamilton where a number of items were removed from…

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 Wyatt

Details

AGLC: R v Wyatt [2009] NZCA 464
Case: [2009] NZCA 464
Decision Date: 8 October 2009

CaseChat Overview and Summary

The appellant, Nicholas Brian Wyatt, appealed against his sentence imposed by Ronald Young J in the High Court at Hamilton. Wyatt had pleaded guilty to multiple charges including threatening to kill, kidnapping, aggravated robbery, using an Eftpos card for pecuniary advantage, unlawfully taking a motor vehicle, and theft. The High Court judge imposed a sentence of seven years and three months imprisonment for the lead offence of kidnapping, with additional terms of imprisonment for other charges, all to be served concurrently. Wyatt’s appeal focused on the length of the seven years and three months sentence. The background of the case revealed that Wyatt, along with a co-offender, had committed serious offences against a victim, causing significant distress and disruption to the victim's life. The co-offender had received a significantly shorter sentence, which was a point of contention for Wyatt's counsel, who argued that the disparity in sentencing between Wyatt and his co-offender was unjustifiable and gross. However, the Court of Appeal found that the differences between the appellant and his co-offender, such as the appellant's extensive criminal history and the timing of his guilty pleas, justified the disparity in their sentences. The Court dismissed Wyatt's appeal, concluding that the sentence was appropriate and did not warrant interference.

Orders