Weaver v The Queen - [2013] NZCA 242

IN THE COURT OF APPEAL OF NEW ZEALAND

CA323/2012
[2013] NZCA 242

BETWEEN	GRAYSON WEAVER Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2013
Court:	Wild, Chisholm and Keane JJ
Counsel:	C J Tennet for Appellant P D Marshall for Respondent
Judgment:	19 June 2013 at 3 pm

JUDGMENT OF THE COURT

A An extension of time to appeal is granted.
BLeave is granted to the appellant to rely on his affidavit and the attached psychological assessment.
CThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Keane J)

On 16 May 2011 Grayson Weaver, and his co‑offender, Katrina Uncles, were sentenced in the District Court, Palmerston North, for two offences on 1 August 2010 at Feilding: aggravated burglary and causing grievous bodily harm with intent to injure. Judge Dawson sentenced both to imprisonment for four years, seven months.[1] We note Ms Uncles was also sentenced to one month cumulative on this sentence on a charge of driving with excess breath alcohol.
[1]R v Weaver DC Palmerston North CRI-2011-054-99, 16 May 2011.
On 16 April 2012 this Court allowed Ms Uncles’ appeal against sentence.[2] Her sentence was reduced to imprisonment for three years, eight months. At the time she offended, this Court found, she suffered bipolar affective disorder. One consultant psychiatrist considered that it may have afforded her a defence of insanity. At the very least there was a nexus between the mental illness and her offences. That and her willingness to undergo treatment, and her remorse, justified a 20 per cent discount.
[2]Uncles v R [2012] NZCA 144.
This Court accepted that this discount would create a disparity between her sentence and that of Mr Weaver, but considered that to be justified because the evidence as to her serious mental disorder was clear and Mr Weaver was not under any equivalent disability. This Court said:[3]
While there is a statement that Mr Weaver suffered from depression and associated anxiety and paranoia in his pre-sentence report, there is nothing to show any relevant mental illness at the time of the offending.
[3]At [26].
Once that decision was issued Mr Weaver elected to appeal his sentence on three grounds: (i) the Judge took into account two aggravating facts beyond the agreed fact summary; (ii) the Judge’s five year starting point was too high and double-counted aggravating facts; and (iii) no credit was allowed to him for his own mental disorder.
By the time he filed his notice of appeal on 17 May 2012, Mr Weaver was almost a year out of time and the Crown opposed an extension. Given that Mr Weaver has the basis we have just outlined explaining why he did not appeal within time, we extend time for appealing and deal with the appeal on its merits.
Mr Weaver seeks leave to file as fresh evidence an affidavit in which he says that on sentence he wished, as Ms Uncles did, to contend that he was less than fully culpable for his offence because…

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 Weaver v The Queen

Details

AGLC: Weaver v The Queen [2013] NZCA 242
Case: [2013] NZCA 242
Decision Date: 19 June 2013 at 3 pm

CaseChat Overview and Summary

The appeal against sentence imposed on Grayson Weaver was dismissed by the Court of Appeal of New Zealand. Weaver had been sentenced to four years and seven months imprisonment for aggravated burglary and causing grievous bodily harm with intent to injure. He appealed on three grounds: the sentencing Judge took into account two aggravating facts not agreed to in the fact summary, the five-year starting point was too high and double-counted aggravating facts, and no credit was given for his own mental disorder. The Court found that the Judge did not err in considering the facts of the case and that the starting point was appropriate. The Court held that Weaver's claim of a mental disorder discount was not supported by the evidence, particularly a psychological assessment completed after sentence. The appeal was dismissed, and leave was granted to rely on the affidavit and attached psychological assessment.

Orders