The Queen v Griffiths - [2006] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND
CA77/06
THE QUEEN
v
MARK GEORGE GRIFFITHS
Hearing:29 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ
Counsel:R G Glover for Appellant

J A Farish for Crown

Judgment:18 September 2006 at 11 am

JUDGMENT OF THE COURT

A LEAVE TO APPEAL IS GRANTED.
BThe appeal is allowed. The six year term is to be served on a concurrent rather than a cumulative basis.

____________________________________________________________________

REASONS OF THE COURT
(Given by Panckhurst J)
This case
[1]       The appellant initially attacked his victim with a sharp instrument and caused a significant cut to the victim’s side. The victim tried to escape, but he was chased, knocked to the ground and rendered unconscious from several blows, including kicks. Judge Doherty in passing sentence said that the victim “received a severe beating”.
[2]       The background to the attack was a relationship which the victim had formed with a prostitute. She was also the appellant’s fiancée. Despite her profession, the relationship between the victim and the young woman was not a sexual one in the usual sense of that phrase. She assisted him in relation to certain fetish behaviour. On the relevant day, 13 March 2003, they were together seeking to procure drugs. There was a disagreement. The young woman fled from the victim’s car to the appellant’s flat. She was pursued. The appellant was made aware of what had just occurred and attacked the victim outside his flat.
[3]       Eventually, the appellant pleaded guilty to offences of wounding with intent to cause grievous bodily harm and assault with intent to injure. The appeal is against a sentence of six years imprisonment, comprised of five and a half years for the wounding and six months cumulative for the assault. Broadly, the case raises two issues:
•whether an effective sentence of six years imprisonment was clearly excessive,
•whether the accumulation of the six year term upon earlier sentences gave rise to a total sentence which was disproportionate in terms of the totality principle.

The second aspect of the appeal is considerably complicated by a convoluted history of offending, release on parole, further offending, a recall of the appellant to prison and two further sentencings, the last of which is the subject of this appeal.
[4] The appeal was filed out of time. The six year sentence was passed in March 2004. The notice of appeal was filed in February 2006. An extension of time is opposed by the Crown. We shall return to the issue of leave once we have considered the substance of the two grounds of appeal.
Was a sentence of six years imprisonment clearly excessive?
The facts were in dispute
[5] Although the appellant belatedly entered pleas of guilty to a charge under s 188(1) of the Crimes Act of wounding with intent to cause grievous bodily harm and to assault with intent to injure under s 194, he did so on the basis that the background facts remained in dispute. There was,…

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 Griffiths

Details

AGLC: The Queen v Griffiths [2006] NZCA 259
Case: [2006] NZCA 259
Decision Date: 18 September 2006

CaseChat Overview and Summary

The case involves Mark George Griffiths, who appealed his sentence of six years imprisonment for wounding with intent to cause grievous bodily harm and assault with intent to injure. The Court of Appeal of New Zealand considered the appeal and ultimately allowed it, modifying the sentence to be served concurrently rather than cumulatively. The primary issues were whether the six-year sentence was clearly excessive and whether the accumulation of the six-year term upon earlier sentences was appropriate under the totality principle. The Court found that while the six-year sentence was not clearly excessive, the cumulative approach was inappropriate given the appellant's history of offending and the implications for his parole eligibility and release dates. The Court also granted leave to appeal due to confusion between the appellant and his original counsel regarding the filing of the appeal.

The Court began by noting the severity of the attack, which involved the use of a sharp instrument and resulted in a significant laceration to the victim's side, followed by a prolonged and frenzied assault that rendered the victim unconscious. The Court recognised the attack was relatively unprovoked, and the appellant's reaction was disproportionate. The appellant had a history of violent offending and was on parole at the time of the attack. The sentencing judge had imposed a six-year term, comprising five and a half years for the wounding and six months for the assault with intent to injure. The Court acknowledged the seriousness of the offence, the appellant's history, and the appropriate sentencing principles of denunciation, deterrence, and protection of the public. The Court concluded that a six-year sentence was not beyond the available range for the offending but found it unfortunate that the sentencing judge did not give a discernible discount for the pleas of guilty.

The Court also examined the appropriateness of the cumulative approach in imposing the six-year term. The appellant had been released on parole in December 2002 from a nine-year sentence imposed in 1996, and had subsequently been sentenced to twelve months imprisonment for demanding with menaces in August 2003. Given the complexity of the appellant's sentencing history and the implications of imposing a further cumulative term, the Court determined that a concurrent six-year sentence would produce more rational parole eligibility, release, and sentence expiry dates. The Court also granted leave to appeal due to the confusion between the appellant and his original counsel regarding the filing of the appeal.

Orders