Tozer v R - [2010] NZCA 7

IN THE COURT OF APPEAL OF NEW ZEALAND
CA17/2010
[2010] NZCA 7
BETWEENSTEPHEN BRENT TOZER
Appellant

ANDTHE QUEEN
Respondent

Hearing:9 February 2010

Court:Glazebrook, Venning and Miller JJ
Counsel:S J Shamy for Appellant
S B Edwards and T Epati for Respondent

Judgment:11 February 2010 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       Mr Tozer appeals against his sentence of two years four months imprisonment imposed for one charge of kidnapping and one charge of injuring with intent to injure. The starting point adopted by the sentencing Judge, Judge Crosbie, was three years six months. There was then a discount of six months for the guilty plea, a further five months for remorse and the offer to pay reparation (which has since been paid) and finally a three-month deduction for being on electronically-monitored bail was allowed. No issue is taken with the appropriateness of the deductions. Mr Tozer challenges the starting point and the fact that home detention was not considered.
Background
[2]       The facts upon which Mr Tozer pleaded guilty are in summary as follows. In early 2007 Mr Tozer was living in a de facto relationship with Ms W on a farm property. In July 2007, Ms W told Mr Tozer that she wanted to end the relationship. He did not take the news well. Shortly afterwards Ms W began a sexual relationship with the male complainant who was known to Mr Tozer.
[3]       On 21 July 2007 Ms W and the complainant went away for the weekend to stay at another farm property. Mr Tozer made enquiries throughout the day to try to locate the couple. Eventually he found out where they were, drove to the farm and parked his car a couple of hundred metres away. Just after 5.00 pm Mr Tozer burst through the front door of the cottage where the couple were staying. As he came through the door he picked up a wooden batten and began striking the complainant about the head. The complainant had no time to react as he had his back to the door. The blows causing the complainant to stumble sideways. Mr Tozer continued to beat the complainant with the batten in one hand while holding him with the other. The complainant held his hand above his head for protection but was struck several times on the left hand. Eventually Mr Tozer stopped striking the complainant who was by then bleeding profusely from his head wounds.
[4]       In the meantime Ms W had escaped from the cottage and fled to a nearby unoccupied farmhouse where she called the police. Mr Tozer told the complainant that they were going to find Ms W together. He also told the complainant that he had hired two gunmen who were outside and, should the complainant make a run for it, he would be shot. Mr Tozer went outside and made hand gestures as if communicating with people in the tree line…

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 Tozer v R

Details

AGLC: Tozer v R [2010] NZCA 7
Case: [2010] NZCA 7
Decision Date: 11 February 2010

CaseChat Overview and Summary

The appellant, Stephen Brent Tozer, appealed against his sentence of two years and four months imprisonment, imposed for one charge of kidnapping and one charge of injuring with intent to injure. The starting point for the sentence, as determined by the sentencing judge, Judge Crosbie, was three years and six months. Various deductions were made, resulting in the final sentence. Tozer challenged the starting point and the failure to consider home detention as an alternative to imprisonment. The facts of the case revealed that Tozer, in a jealous rage, kidnapped and assaulted the complainant, who was in a relationship with Tozer's former partner. The assault was carried out with a wooden baton, and the complainant was threatened with the presence of hired gunmen. The complainant suffered significant physical and emotional injuries as a result of the attack. The court found that the sentence was appropriate, given the severity of the crimes and the impact on the victim. The court rejected the argument that home detention should have been considered as an alternative to imprisonment, due to the gravity of the offending. The appeal was dismissed, and the original sentence was upheld.

Orders