Ross v R - [2010] NZCA 306

IN THE COURT OF APPEAL OF NEW ZEALAND
CA315/2010
[2010] NZCA 306
BETWEENNEIL JOSEPH ROSS

Appellant

ANDTHE QUEEN

Respondent

Hearing:13 July 2010

Court:Hammond, Chisholm and Andrews JJ
Counsel:S A Saunderson-Warner for Appellant

K A L Bicknell for Crown

Judgment:20 July 2010 at 10 am

JUDGMENT OF THE COURT

A Appeal allowed.
B Sentences totalling two years and 11 months imprisonment quashed and replaced with sentences totalling two years and six months imprisonment.

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REASONS OF THE COURT
(Given by Chisholm J)
[1]        Having pleaded guilty to charges of injuring with intent to injure and breaching a protection order, the appellant was sentenced to a total of two years and 11 months imprisonment by Judge O’Driscoll in the District Court at Dunedin.[1] He appeals against that sentence on the grounds that in all the circumstances it is manifestly excessive.
The offending
Injuring with intent
[1]      R v Ross DC Dunedin CRI-2009-012-6393, 4 May 2010.
[2]        At about 6.35pm on 3 November 2009 the appellant approached the victim who was sitting in his car. The appellant and victim had first met around two years before. At that time the appellant had told the victim to stay away from his ex girlfriend who was also a friend of the victim.
[3]        After opening the driver’s door and pinning the victim to his vehicle, the appellant punched the victim on the side of the head with a closed fist on multiple occasions. The victim attempted to protect himself by holding his arms over his face. The appellant then violently pulled at the victim’s ear. Following that the appellant unsuccessfully attempted to burn the victim on the face with a cigarette that the appellant had been smoking. Then the appellant took the victim’s sunglasses and crushed them. During the attack the appellant told the victim to stay away from his family. After striking the victim on the side of the head another two or three times, pulling the victim’s hair “extremely hard”, and telling the victim “Here is your warning”, the appellant left.
[4]        As a result of the attack the victim had bruising and grazing to his forehead as well as bruising and soreness around his left eye. The skin at the back of his neck was red and sore, and there was a 15 mm wound at the base of his right ear. We have seen photographs of the victim’s injuries.
Breach of protection order
[5]        On 4 November 2008 the appellant was served with a protection order relating to a female with whom he had previously been in a relationship. On 2 December 2009 the appellant rang the victim at her home address on three occasions. The first two calls were not answered. The victim answered the third call and during the conversation that ensued the appellant told the victim “You thought you feared for your life before, I’ve got absolutely nothing now, what do you think I am going to do now?” When the appellant became “angrier” the victim hung up.

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 Ross v R

Details

AGLC: Ross v R [2010] NZCA 306
Case: [2010] NZCA 306
Decision Date: 20 July 2010

CaseChat Overview and Summary

Neil Joseph Ross appeals against the sentence imposed by Judge O’Driscoll in the District Court at Dunedin, which was a total of two years and 11 months imprisonment for charges of injuring with intent to injure and breaching a protection order. Ross argues that the sentence is manifestly excessive. The court was required to determine whether the sentence imposed was appropriate and whether the judge correctly applied the principles of sentencing, particularly the totality principle.

The court considered the arguments presented by Ross’s counsel, Ms Saunderson-Warner, who claimed that the starting point for the injuring charge was too high, the uplift for aggravating factors was unreasonable, no credit was allowed for the guilty plea on the protection order charge, and the total sentence contravened the totality principle. The court found that while the starting point for the injuring charge was indeed too high, the judge’s application of the aggravating factors and the discount for the guilty plea were appropriate. The court also found that the six-month sentence for the breach of the protection order was excessive.

The court concluded that the appropriate sentence, considering the totality principle, should be two and a half years imprisonment, with two years and three months for the injuring charge and a cumulative three months for the protection order charge. The appeal was allowed, and the original sentences were quashed and replaced with the new sentences.

Orders