Trainor v The Queen - [2015] NZHC 921

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000002 [2015] NZHC 921

BETWEEN
ANDREW STEVEN TRAINOR

Plaintiff

AND

THE QUEEN Defendant

Hearing: 4 May 2015

Appearances:

J A Westgate for Appellant
JNP Young for Crown

Judgment:

6 May 2015

JUDGMENT OF DUNNINGHAM J

[1] Mr Trainor appeals against the sentence imposed in the District Court for the following offences to which he pleaded guilty:1

(a) assault with intent to injure;2

(b) kidnapping;3 and

(c) theft of a motor vehicle.4

[2] The District Court Judge sentenced Mr Trainor to two years three months for the kidnapping charge and imposed concurrent sentences of 18 months and
12 months for the charge of assault with intent to injure and the charge of theft,

respectively.

1      R v Trainor [2015] NZDC 1356.
2      Crimes Act 1961, s 193.
3      Crimes Act 1961, s 209.
4      Crimes Act 1961, s 227(1)

TRAINOR v THE QUEEN [2015] NZHC 921 [6 May 2015]

[3] Critically, for the purposes of this appeal, the lead sentence of two years three months’ imprisonment was imposed cumulatively on a previous two year sentence imposed for charges of male assaults female and the breach of a protection order,5 (“the male assaults female offending”) resulting in a total end sentence of four years three months’ imprisonment.

[4] Mr Trainor appeals on the basis that:

(a) the sentence was manifestly excessive; and

(b) a different sentence should have been imposed.

[5] Through counsel, he argues that a greater discount should have been given to reflect the totality principle and the end sentence on the charges to which he pleaded guilty should, taking into account the existing two year sentence, result in an overall sentence of no more than three years and three months instead of the four years and three months which resulted.

The kidnapping offending

[6] The charges to which Mr Trainor pleaded guilty arose out of events occurring on 1 November 2013. The victim was enticed to the home of the victim’s ex partner, Ms Fuller, through texts sent on her phone by Mr Trainor who was Ms Fuller’s partner at the time. A third person, Mr Bain, was also arranged to be there as the intention was to assault the victim and question him about money they believed he owed them. When the victim arrived, Ms Fuller met him, but when he came inside, Mr Trainor emerged, exchanged some words with the victim and then attacked him, hitting him multiple times in the face. After initially fighting back, the victim was overcome. He fell to the ground in a foetal position where Mr Trainor kicked him in the head and side of his body.

[7] The assault was only interrupted by a period of questioning at which point the victim was threatened with extreme physical violence with the intent of making him
fear for his life. Mr Bain and Ms Fuller also took part in the attack. At one point

5 R v Trainor DC Invercargill CRI-2014-025-592, 13 November 2014.

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 Trainor v The Queen

Details

AGLC: Trainor v The Queen [2015] NZHC 921
Case: [2015] NZHC 921
Decision Date: 6 May 2015

CaseChat Overview and Summary

The appellant, Andrew Steven Trainor, appeals against the sentence imposed by the District Court for charges of assault with intent to injure, kidnapping and theft of a motor vehicle. The District Court Judge imposed a sentence of two years three months for the kidnapping charge and concurrent sentences of 18 months and 12 months for the assault and theft charges, respectively. The sentence for the kidnapping charge was imposed cumulatively on a previous two-year sentence for charges of male assaults female and breach of a protection order, resulting in a total end sentence of four years and three months. Trainor argues that the sentence was manifestly excessive and that a different sentence should have been imposed, taking into account the totality principle and the need to impose distinct and cumulative sentences for the two separate tranches of offending.

The Court held that the District Court Judge was required to consider all of the offending at the same time, albeit taking the kidnapping as the lead offence. The Court considered the appropriate sentence to be imposed on Trainor if one Judge had sentenced him for all the offences on one occasion. The Court was satisfied that the sentencing Judge's sentencing on the kidnapping charge was entirely appropriate and well within range. However, the Court considered that the end sentence of four years and three months falls outside the sentence which would have been imposed to take account of the totality of the offending if one Judge had been sentencing the appellant for all the offences on which he had been convicted. The Court substituted a sentence of 22 months on the kidnapping charge, which means the sentence imposed falls within the category of being manifestly excessive warranting the imposition of a different sentence. The sentences on the other charges remain unaffected.

The Court quashed the sentence of two years and three months on the kidnapping charge and substituted a sentence of 22 months. The sentences on the other charges remain unaffected.

Orders