The Queen v Ah You - [2009] NZCA 534

IN THE COURT OF APPEAL OF NEW ZEALAND
CA343/2009
[2009] NZCA 534
THE QUEEN
v
OLINALE AH YOU
Hearing:10 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ
Counsel:S D Cassidy for Appellant

B D Tantrum for Crown

Judgment:12 November 2009 at 4 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       This is an appeal against an effective sentence, imposed by Potter J, of 12 years’ imprisonment with a minimum period of imprisonment of eight years: HC AK CRI 2009-092-002028 15 May 2009.
[2]       Mr Ah You pleaded guilty, prior to depositions, to two charges of aggravated robbery and three charges of robbery. The District Court declined jurisdiction to impose a finite sentence of imprisonment and transferred sentencing to the High Court so that preventive detention could be considered as a sentencing option.
Background
[3]       Potter J described the facts as follows:
Robbery 6 December 2005: Colmell Road Dannemora
[5]       The prisoner entered a house where the victim was tiling. He pinned the victim against the wall and threatened him. He took a cellphone from the victim and demanded his wallet in exchange. When the victim refused the prisoner departed with the phone.
24 August 2007: Ranfurly Road, Papatoetoe
[6]       This address served as both a home and business premises for the victim. The prisoner encountered the victim in the business part of the premises and demanded money. He entered the residential part of the premises and attacked the victim by pulling her hair and pushing her and demanding money. The prisoner also repeatedly threatened to harm the victim’s three month old baby if she did not give him money. The prisoner took a hand-held cordless telephone, a cellphone and the victim’s purse containing $480.
19 September 2007: Pitt Avenue, Clendon
[7]       The victim, as in the case of the robbery at Colmell Road, was working as a tiler in a residential property. The prisoner entered the house with an associate. He pushed the victim into the garage and then into a room by the garage. He grabbed the victim by the collar and threw him to the ground. He then punched and kicked the victim about the body, continuing until his associate arrived and pulled him off the victim. The victim suffered lacerations to the head, bruising all over his body, a small skull fracture and a compound knee fracture that required surgery. During the assault the prisoner removed a set of keys from the victim’s pockets. This incident gave rise to the first of the two aggravated robbery charges.
27 May 2008: Redoubt Road, Flatbush
[8]       The prisoner entered the victim’s home address and approached the victim, a seventeen year old male, with a spanner-like tool which the prisoner took from his vehicle. He pushed the victim in the chest causing him to fall backwards on to a couch. H threatened the victim, asking him where money and jewellery were located. He told the victim…

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 The Queen v Ah You

Details

AGLC: The Queen v Ah You [2009] NZCA 534
Case: [2009] NZCA 534
Decision Date: 12 November 2009

CaseChat Overview and Summary

In the case of The Queen v Ah You, the appellant pleaded guilty to multiple charges of aggravated robbery and robbery. The sentencing was transferred to the High Court to consider preventive detention. The appeal against the sentence of 12 years imprisonment, with a minimum of eight years, was dismissed by the Court of Appeal of New Zealand. The appellant's counsel argued that the starting point of 14 years for the total offending was too high and the minimum period of imprisonment was not necessary. However, the Court found that the appellant's previous convictions, premeditation, and the vulnerability of the victims justified the sentence. The Court concluded that the sentence was within the available range and not beyond challenge.

The Court of Appeal examined the legal issues regarding the appropriate starting point for the sentence and the necessity of the minimum period of imprisonment. The appellant's counsel argued that a starting point of seven or eight years would have been appropriate for the most serious offence, with a total sentence of 12 to 14 years before the discount for the early plea of guilty. However, the Crown argued that a 14-year starting point was appropriate, and the 12-year effective sentence could not be challenged. The Court agreed with the Crown and found that the 12-year effective sentence was within the available range and not beyond challenge.

The Court of Appeal concluded that the appellant's previous convictions, premeditation, and the vulnerability of the victims justified the sentence. The Court found that the sentence was within the available range and not beyond challenge. The appeal against sentence was accordingly dismissed.

Orders