Robertson v The Queen - [2011] NZCA 517

IN THE COURT OF APPEAL OF NEW ZEALAND

CA91/2011
[2011] NZCA 517

BETWEEN HARLEY DAVID ROBERTSON
Appellant

AND THE QUEEN
Respondent

Hearing: 26 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: A M Schulze and G C Burt for Appellant
R J Collins for Respondent

Judgment: 3 October 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Harley Robertson appeals against a sentence of two years and seven months imprisonment imposed upon him in the High Court at Rotorua on 4 February 2011 following his plea of guilty to one charge of causing grievous bodily harm with intent to injure.[1]
[1] R v Follas HC Rotorua CRI-2009-077-1497, 4 February 2011.
Mr Robertson had participated in a group attack on a young man. The principal offender, Mr Bolt, pleaded guilty to a charge of attempted murder. The Crown accepted that Mr Bolt’s three co-offenders – Messrs Robertson, Wilson and Follas – participated in secondary capacities. All three pleaded guilty to the same lesser charge.
Mr Schulze submits that the sentence imposed on Mr Robertson was manifestly excessive: in particular that the starting point adopted was too high; that the sentence was disparate with the sentence imposed on Mr Wilson; and that an insufficient allowance was made for Mr Robertson’s plea of guilty.

Background

The relevant facts are not in dispute, and are summarised in this passage from the notes of the sentencing Judge, Priestley J, as follows:
[8] The offending was part and parcel of incidents in Tokoroa in mid-September 2009. There had been previous drinking involving Mr Bolt. There was some suggestion by Mr Bolt that the parties should go to Tokoroa to “get some niggers”. I accept, having listened to counsel, that that degree of premeditation cannot properly be sheeted home to these three prisoners. The stated reason for going to Tokoroa was to acquire money from a money machine with which, so Ms Ewen submits, the parties intended to purchase drugs. In the vicinity of the money machine the victim and three others were seen. Mr Bolt and the prisoner Mr Follas got out of the vehicle to challenge the four youths to a fight. Mr Robertson, for his part, went to the money machine. Mr Wilson, who I accept had a day or two beforehand injured his arm and foot, both which parts of his anatomy were in a plaster cast, and who needed crutches, stayed in the vehicle. The victim and his friends ran away, being understandably fearful of being attacked. After a short chase on foot, which involved Mr Follas alone of these three, the chase was abandoned. The group then drove around Tokoroa in an attempt to find the four they were pursuing. They were spotted. There was a deliberate change in direction of the vehicle driven by Mr Bolt. The pursued group broke up. The victim, who at this stage was running across a reserve, attempted to climb a…

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 Robertson v The Queen

Details

AGLC: Robertson v The Queen [2011] NZCA 517
Case: [2011] NZCA 517
Decision Date: 3 October 2011

CaseChat Overview and Summary

Harley Robertson appeals against his sentence of two years and seven months imprisonment imposed in the High Court at Rotorua following his guilty plea to causing grievous bodily harm with intent to injure. The appeal was dismissed by the Court of Appeal of New Zealand, which held that the starting point of three and a half years imprisonment was not manifestly excessive, the disparity in sentence between Robertson and his co-offender Wilson was not unjust, and the allowance made for Robertson's guilty plea was sufficient.

The primary legal issue before the Court was whether the sentence imposed on Robertson was manifestly excessive. In considering this issue, the Court examined the starting point for Robertson's sentence, the disparity in sentence between Robertson and Wilson, and the discount for Robertson's guilty plea. The Court found that the starting point for Robertson's sentence was not manifestly excessive, the disparity in sentence between Robertson and Wilson was not unjust, and the discount for Robertson's guilty plea was sufficient.

The Court of Appeal of New Zealand held that the starting point for Robertson's sentence was not manifestly excessive. The Court noted that the starting point for Robertson's sentence was about one third of the starting point for the principal offender, Bolt, who had pleaded guilty to attempted murder. The Court found that the starting point for Robertson's sentence was well within range given the circumstances of the offence.

The Court also held that the disparity in sentence between Robertson and Wilson was not unjust. The Court noted that Wilson had received a greater allowance for his temporary physical incapacity, which was a reasonable basis for differentiating between the two offenders. The Court found that the four month difference in the end sentences was not such as to be inconsonant with the ends of justice.

Finally, the Court held that the discount for Robertson's guilty plea was sufficient. The Court noted that the Judge had allowed a further discount of 12 months to represent Robertson's guilty plea, his remorse and his youth. The Court found that this discount was generous but fair and appropriate.

The Court of Appeal of New Zealand dismissed Robertson's appeal. The Court held that the starting point for Robertson's sentence was not manifestly excessive, the disparity in sentence between Robertson and Wilson was not unjust, and the discount for Robertson's guilty plea was sufficient. The sentence of two years and seven months imprisonment imposed on Robertson was therefore affirmed.

Orders