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The Queen v King

The Queen v King

Case [2009] NZCA 194 21 May 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA17/2009
[2009] NZCA 194
THE QUEEN
v
FONZIE KING
Hearing:12 May 2009

Court:Ellen France, Priestley and Miller JJ
Counsel:G H Allan for the Crown

M B J Curran for Respondent

Judgment:21 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
[1]       The Solicitor-General seeks leave to appeal against a sentence of 18 months imprisonment imposed on two charges of assault with intent to rob (at the time, s 235(1)(c) Crimes Act 1961).
[2]       The crime was committed on 12 June 1996, when Mr King was aged 16, but he was not charged until he was identified through DNA analysis undertaken years later.
[3]       Mr King tried to rob a small takeaways shop at Forest Lake, Hamilton. He approached the rear of the shop with a hammer and a beanie or balaclava, which he pulled over his face. He wore gloves. He seized the female proprietor, who was carrying a three-year-old child, outside the shop and told her to shut up. She struggled, and fell to the ground, where he knelt over her and placed his hand over her mouth. She kept trying to get up, still holding the child, and he pushed her down each time, with the child’s head hitting the pavement on one occasion.
[4]       The male proprietor came to his wife’s assistance as Mr King, persisting in his efforts, ran into the shop. He swung the hammer several times at the male victim, one blow striking him on the left hand and another on the cheek. However, the couple were able to disarm him and turn the hammer against him, causing him a bleeding nose, and Mr King fled.
[5]       The male victim suffered a fractured cheek bone and facial swelling. Another child of the couple, aged six, also witnessed the attack.
[6]       Mr King denied involvement when told of the DNA match. He eventually pleaded guilty after the jury was empanelled and the Crown had opened its case at his trial in the District Court at Hamilton, saying he wanted to get it over with.
[7]       Mr King had no convictions at the time of the offence, but managed to accumulate a number in the intervening years. They included nine for offences of dishonesty, including burglary, theft, and being in an enclosed yard. There were four convictions for assault between 2005 and 2008, and one in 1998 for possession of an offensive weapon.
[8]       On 16 December 2008 Mr King was sentenced on the present charges and a charge of burglary in which his ex-partner was the victim. A disturbing feature of that offence was that he damaged a photograph of her by burning the image of her face.
[9]       The presentence reports were sympathetic. At the time of the offence, Mr King’s parents had moved to Australia and he was living on the streets. The writer explained that…

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 King

Details

AGLC: The Queen v King [2009] NZCA 194
Case: [2009] NZCA 194
Decision Date: 21 May 2009

CaseChat Overview and Summary

The appeal before the Court of Appeal of New Zealand involved the case of The Queen v King, where the Solicitor-General sought leave to appeal against a sentence of 18 months imprisonment imposed on Fonzie King for two charges of assault with intent to rob. The crime was committed in 1996 when King was 16 years old, but he was not charged until identified through DNA analysis years later. The Court was required to decide whether the sentence imposed was manifestly inadequate or if the Judge based it on some error of principle.

The Court considered the arguments presented by both parties and the relevant legal precedents. The Crown argued that a sentence of three to four years imprisonment was warranted on the assault with intent to rob charges, while King's counsel contended that the sentence was appropriate, considering his age at the time of the offence and the mitigating factors presented in the pre-sentence reports. The Court noted that the starting point for sentencing should be determined based on the nature of the offence and the circumstances of the offender, and that it should be flexible, allowing for age and other mitigating factors.

The Court concluded that the sentence, although lenient, was not manifestly inadequate. The Judge had considered the appropriate starting point and had made appropriate deductions for youth, circumstances, and guilty pleas. The Court emphasized the importance of not overriding the sentencing Judge's discretion to exercise mercy or pursue a rehabilitative course. As a result, leave to appeal was granted, but the appeal was dismissed.

The final orders of the Court were that leave to appeal was granted but the appeal was dismissed, meaning that the original sentence of 18 months imprisonment for the two charges of assault with intent to rob remained in place.

Orders