Wall v R - [2010] NZCA 494

IN THE COURT OF APPEAL OF NEW ZEALAND
CA427/2010
[2010] NZCA 494
BETWEENBO-DEAN MICHAEL WALL

Appellant

ANDTHE QUEEN

Respondent

Hearing:19 October 2010

Court:Hammond, Chisholm and MacKenzie JJ
Counsel:W Kerr for Appellant

K J Beaton for Respondent

Judgment:29 October 2010 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
[1]        This is an appeal against a total sentence of 22 months imprisonment imposed by Judge Radford in the District Court at Christchurch for various offences including arson, assaults on the police and breaches of court orders.[1] The appellant contends that the sentence is manifestly excessive.
History
[1]R v Wall DC Christchurch CRI 2008-009-019972, 2009-009-008011 and 2009-009-013819, 17 June 2010.
[2]        Following a spate of offending between December 2008 and May 2009 the appellant pleaded guilty to 10 charges: unlawfully getting into a motor vehicle (2); possession of instruments for conversion; possession of equipment (misuse of drugs); failing to answer court bail (2); wilful damage (3); and assaulting a police officer (spitting at a police officer). He was sentenced to 12 months intensive supervision.
[3]        While he was on bail in relation to the offending during December 2008 and January 2009, the appellant was involved in events during the early hours of 7 February 2009, which gave rise to a charge of arson and three charges of intentional damage. It was alleged that the appellant and two associates set fire to a hedge at a school and caused damage to the school and other structures by throwing rocks.   He admitted the charges of intentional damage, but denied arson.
[4]        Thereafter the appellant was involved in a series of breaches of court orders. He failed to report as required by the sentence of intensive supervision and, having pleaded guilty, was ordered to come up for sentence if called upon within nine months.   Six days later he failed to appear at the depositions hearing on the arson charge. Then, on 7 September 2009, he breached the intensive supervision order for a second time. This second breach prompted the probation officer to seek cancellation of the sentence and re-sentencing on the various charges giving rise to the sentence. The appellant indicated he intended to defend the application.
[5]        The arson charge ultimately came before Judge Crosbie and a jury on 7 December 2009. At the conclusion of the evidence of the first witness Judge Crosbie offered to amend the charge (which would have the effect of reducing the maximum sentence by two years). The Judge also indicated that, subject to a favourable pre-sentence report, he would impose a sentence of home detention and that he wanted the application to cancel the intensive supervision order to be dealt with at the same time.
[6]        Following those indications the appellant pleaded guilty to the amended arson charge and withdrew his opposition to the application to cancel the intensive supervision order. He was remanded for sentence on 11 February 2010.
[7]        Unfortunately the offending did…

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 Wall v R

Details

AGLC: Wall v R [2010] NZCA 494
Case: [2010] NZCA 494
Decision Date: 29 October 2010

CaseChat Overview and Summary

Bo-Dean Michael Wall appealed against the sentence of 22 months imprisonment imposed by Judge Radford in the Christchurch District Court. The sentence was for various offences including arson, assaults on police, and breaches of court orders. Wall contended that the sentence was manifestly excessive. The appeal was heard by Hammond, Chisholm, and MacKenzie JJ. The court found that the appellant's sentence was not manifestly excessive and dismissed the appeal.

The legal issues in this case were whether the sentence was manifestly excessive, and whether the starting point and uplift for the sentence were within the range reasonably available to the sentencing judge. The court found that the starting point of 22 months was not beyond the range available to the sentencing judge, and that the uplift for the other offending was also within the range reasonably available to the judge. The court also found that the discount of 35 per cent was generous and there was no challenge to it.

The court's reasoning was that the appellant had a significant area of criminality and had demonstrated that he was not prepared to abide by conditions which might allow the court to leave him in the community. The court found that the appellant's offending encompassed a significant area of criminality and that the starting point of 22 months was not out of line. The court also found that the uplift for the other offending was within the range reasonably available to the judge, taking into account that the appellant was being sentenced on 12 charges in addition to the charge of arson. The court found that the assaults on police officers were particularly despicable. The court also found that the discount of 35 per cent was generous and there was no challenge to it.

The appeal against sentence was dismissed.

Orders