The Queen v Shirley - [2009] NZCA 509

IN THE COURT OF APPEAL OF NEW ZEALAND
CA57/2009
[2009] NZCA 509
THE QUEEN
v
MONCELLO DAVID SHIRLEY
Hearing:6 October 2009

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

B Hawes for Crown

Judgment:23 October 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1]        On 28 January 2009 the appellant was sentenced to a total of six years imprisonment in relation to two unrelated sets of offending. He now appeals against sentence.
The offending
[2]        The first offending involved an aggravated burglary which occurred on 8 April 2007. The night before (ie on 7 April) there had been a party at the home of the appellant’s brother, Kyle. Also present was another brother, Nathan. During the night there was an incident between Nathan and Kyle’s father-in-law which resulted in Nathan leaving the premises.
[3]        At approximately 1.30 am in the morning Nathan and the appellant returned to Kyle’s address. Nathan had a large knife and the appellant was carrying a wooden chair leg. Nathan knocked on the door. Kyle’s partner opened the door and told Nathan and the appellant to leave. They both, however, entered the house. The father-in-law came out to see what was happening but quickly retreated to his bedroom and barricaded the door. The appellant followed him and used the wooden chair leg to bang on the bedroom door. When it became apparent that the Police had been summoned, the appellant and Nathan left the address.
[4]        The appellant was found guilty of aggravated burglary in relation to these events.
[5]        While on bail in relation to this offence, the appellant re-offended.
[6]        He had been at a party in company with the victim (who was a friend of longstanding). The victim left the party and was followed by the appellant who attempted to get him to return. The victim was unwilling to return and in the course of what followed, he grabbed the appellant and held him against a wire security wall. He realised that the appellant was carrying a knife (incidentally one which the victim had previously sold to the appellant). The victim in effect challenged the appellant to use the knife but the appellant, initially, did not attempt to do so. When the victim let him go and went to walk away the appellant stabbed him in the chest. Although the victim’s injuries were serious he has made a full recovery.
[7]        At the commencement of his trial in relation to this offending, the appellant pleaded guilty to a count of unlawful possession of an offensive weapon. The jury found him guilty of wounding with intent to cause grievous bodily harm.
The appellant
[8]        The appellant was 19 years old when he appeared for sentence. He is slightly built.
[9]        His childhood was characterised by disharmony between his parents, physical trauma, and apparently some sexual abuse. He is of limited intellectual ability and his schooling…

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 Shirley

Details

AGLC: The Queen v Shirley [2009] NZCA 509
Case: [2009] NZCA 509
Decision Date: 23 October 2009

CaseChat Overview and Summary

The appeal of Moncello David Shirley against his sentence was heard by the Court of Appeal of New Zealand. The appellant had been sentenced to a total of six years imprisonment for two sets of unrelated offending: aggravated burglary and wounding with intent to cause grievous bodily harm. The appeal was dismissed by the Court. The appellant's background was one of family disharmony, physical trauma, and sexual abuse. He had a troubled childhood and was of limited intellectual ability. He had a history of offending including possessing a knife in a public place, burglary, and crimes of violence. The appellant had been on bail for the aggravated burglary charge when he committed the wounding offence.

The Court examined the legal issues raised by the appellant's counsel regarding the sentencing judge's approach to self-defence, the provocation allegedly offered by the victim, and the treatment of the Youth Court offending. The Court found that the sentencing judge had correctly excluded self-defence and considered the appellant to be the aggressor. The alleged provocation did not provide substantial mitigation. The Youth Court offending was relevant, but the balancing of aggravating and mitigating factors was generous to the appellant. The Court considered that the appellant's difficulties in prison were largely a matter for the prison authorities.

The Court concluded that the appellant was fortunate that the sentencing judge did not accumulate the sentences for the two sets of offending. The overall leniency of the sentence imposed was sufficient to take into account any mitigating factors not allowed for by the sentencing judge. The appeal was dismissed, and the original sentence was upheld.

Orders