The Queen v Savelio - [2007] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

CA134/07

[2007] NZCA 333

THE QUEEN

POPE PATRICK SAVELIO

Hearing:

Court:
Counsel:

17 July 2007

Arnold , Potter and Venning JJ

G Boot for Appellant M D Downs for Crown

Judgment: 6 August 2007 at 3 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal against sentence is allowed to the extent that the sentence of 15 months for breach of a protection order is quashed and a sentence of six months is substituted. The appeal is otherwise dismissed.

REASONS OF THE COURT

(Given by Potter J)

R V SA VELIO CA CA134/07 [6 August 2007]

Introduction

[1] Pope Patrick Savelio appeals against an effective sentence of eight years imprisonment with a minimum period of imprisonment of four years, imposed following guilty pleas entered to a range of offences which arose from a domestic incident on 6 September 2006.

[2] The appellant seeks leave to appeal out of time which is not opposed by the Crown.

[3] The appellant submits that the eight year term of imprisonment is manifestly excessive (the 50% minimum period of imprisonment is not directly challenged). Also that the sentence of 15 months imposed for breach of a protection order exceeds the maximum penalty available (six months).

[4] The Crown submits that the sentence of eight years imprisonment is consistent with the guidelines in R v Taueki [2005] 3 NZLR 372 (CA), and was within the sentencing Judge's discretion given the totality of the offending and the aggravating factors. The Crown accepts that the sentence of 15 months for breach of a protection order is outside the Judge's jurisdiction and should be reduced.

Sentences

The sentences imposed by Judge Rollo on 18 January 2007 were:
(a)Eight years for wounding with intent to cause grievous bodily harm
with a minimum period of imprisonment of four years (maximum
penalty 14 years imprisonment).
(b)Two and a half years for aggravated burglary (maximum penalty
14 years imprisonment).
(c)Fifteen months for assault with intent to injure (maximum penalty
three years imprisonment).

(d)Fifteen months for male assaults female (maximum penalty two years
imprisonment).
(e)Fifteen months for breach of a protection order (maximum penalty
six months imprisonment).

Background facts

[6] The detailed facts as set out in the summary of facts on the basis of which the appellant entered the guilty pleas, are important.

[7] The appellant and the female complainant had been in a de facto relationship for four years. The relationship ended in February 2006. There were two children of the relationship of whom the younger was aged one year at the time of the offending.

[8] The female complainant had obtained a protection order against the appellant which was in force at the time of the offending. She had formed a relationship with the male complainant from May 2006.

[9] On 6 September 2006 the appellant had been in the neighbourhood of the home occupied by the complainants and had been consuming alcohol. At approximately 2.30 a.m.…

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 Savelio

Details

AGLC: The Queen v Savelio [2007] NZCA 333
Case: [2007] NZCA 333
Decision Date: 6 August 2007

CaseChat Overview and Summary

Pope Patrick Savelio appeals against a sentence of eight years imprisonment with a minimum term of four years, imposed following guilty pleas to various offences stemming from a domestic incident. The appellant argues that the eight-year sentence is manifestly excessive and that the 15-month sentence for breach of a protection order exceeds the maximum penalty available. The Crown contends that the sentence falls within the sentencing Judge's discretion and is consistent with the guidelines in R v Taueki. The Court of Appeal accepted that the 15-month sentence for breach of a protection order was outside the Judge's jurisdiction and should be reduced.

The Court of Appeal reviewed the sentencing principles set out in R v Taueki, emphasizing the need for a flexible and evaluative approach that considers the totality of the offending and the offender. The Judge identified several aggravating factors, including the use of lethal weapons, extreme violence witnessed by two children, unlawful entry into the dwelling place at night, vulnerability of the victims, and premeditation. Mitigating factors included early guilty pleas, the appellant's remorse, strong family support, and previous good character. The Judge took an initial starting point of ten years six months, increased it to eleven years to account for the aggravating features of the offender, and then reduced it by three years for the mitigating factors, resulting in an end sentence of eight years.

The Court of Appeal found that the eight-year sentence was stern but not manifestly excessive. The combination of aggravating factors and the assessment of overall culpability justified the starting point of eleven years. The Court allowed the appeal to the extent that the 15-month sentence for breach of a protection order was quashed and a sentence of six months was substituted. The appeal was otherwise dismissed.

Orders