The appellant was, on 17 February 2012, sentenced by Judge Spiller in the District Court at Hamilton to eight years’ imprisonment, with a minimum period of four years and eight months’ imprisonment,[1] following pleas of guilty to two charges of aggravated wounding,[2] one charge of unlawful detainment[3] and one charge of wilful damage.[4] The appellant appeals against that sentence.
Background
[1] R v Tryselaar DC Hamilton CRI-2011-019-6085, 17 February 2012.
[2] Crimes Act 1961, s 191(1)(a) – maximum penalty 14 years’ imprisonment.
[3] Section 209(a) – maximum penalty 14 years’ imprisonment.
[4] Section 269(2)(a) – maximum penalty seven years’ imprisonment.
The charges arose out of a prison escape attempt by the appellant and his co-offender, another prisoner, who were serving inmates housed in separate cells in the Nikau Unit, at Waikeria Prison in Te Awamutu.
On 30 July 2011, the appellant and his co-offender each pulled away a metal bracket from the sink in their cells. At about 8:00 pm, they each smashed the glass window located at the front of their cells, covering the window with a duvet to mask the sound. The appellant and his co-offender climbed out their windows and ran over to the guardroom. Two Corrections Officers, Ms Morris and Mr Prasad, who were in the guardroom at the time, heard a commotion outside and went to investigate. Ms Morris opened the guardroom door and saw the appellant and his co-offender approaching the fence. The appellant jumped the fence and hit Ms Morris in the head with the metal bracket. Ms Morris crossed her arms in front of her face and head in a defensive position. The appellant continued to attack her with the metal bracket. He pushed her back towards the guardroom, and told Ms Morris and Mr Prasad not to contact anyone.
By this time, the appellant’s co-offender had jumped over the fence and entered the guardroom, also armed with a metal bracket. The two of them turned on Mr Prasad. They delivered a number of heavy blows to the head, causing him to fall to the ground. They demanded the keys to the unit. When Mr Prasad said he did not have the keys, the co-offender demanded his house and car keys. When Mr Prasad refused, both the offenders struck him a number of times with the metal brackets. Mr Prasad fell unconscious.
Ms Morris radioed communications for help. She ran from the guardroom into a toilet block and locked the door behind her. The two offenders followed her and kicked in the door of the toilet. They walked Ms Morris back toward…
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 Tryselaar v R
Sign in free to access the full text
Details
AGLC
Tryselaar v R [2012] NZCA 353
Case
[2012] NZCA 353
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appeal against sentence was dismissed in the case of Tryselaar v R. The appellant, Joshua Mark William Tryselaar, had pleaded guilty to multiple charges including aggravated wounding, unlawful detainment, and wilful damage. He was sentenced by Judge Spiller in the District Court at Hamilton to a total of eight years' imprisonment, with a minimum of four years and eight months, which was cumulative on his existing sentence. The appellant appealed against the sentence. The legal issues centered on whether the starting point for the sentence was too high and if the totality principle was appropriately applied. The Court found that the starting point was justified given the seriousness of the crimes, and that the totality principle had limited application in cases of violent offending in prison. The Court agreed with the District Court's decision and dismissed the appeal, affirming the imposed sentence.