Webber v R - [2012] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND

CA349/2012
[2012] NZCA 594

BETWEEN MATTHEW WEBBER
Appellant

AND THE QUEEN
Respondent

Hearing: 4 December 2012

Court: Arnold, Wild and White JJ

Counsel: E J Forster for Appellant
K E Salmond for Respondent

Judgment: 17 December 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentesnce only, is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Webber appeals against a sentence of three years and six months imprisonment imposed on him by Judge Atkins QC in the District Court at Palmerston North on 23 May 2012.[1]
[1] R v Webber DC Palmerston North CRI-2010-031-1607, 23 May 2012.
Only one point is taken on appeal. It is that the sentence imposed by Judge Atkins was disproportionately severe and crushing when viewed together with an earlier sentence of one year and eight months imprisonment, and then a further short sentence of 21 days imprisonment, earlier imposed on Mr Webber. Mr Forster contends that Judge Atkins erred in declining to look at the totality of Mr Webber’s criminal behaviour, including that for which the earlier sentences had been imposed. In Mr Forster’s submission, such a totality approach demanded a reduction in the sentence imposed by Judge Atkins.

Background

Mr Webber was convicted of involvement in two separate incidents of violent offending, four months apart.
The first incident was on 13 May 2010. Mr Webber and his father were drinking at a bar in Waikanae. They got into an argument with another patron. Without warning, Mr Webber head butted the other patron who fell over backwards. While the victim was on the floor Mr Webber and his father punched him and kicked him until bar staff and other patrons intervened.
The victim suffered very serious injuries. His jaw and eye socket were broken and his face and head severely bruised. He was in hospital for three days receiving treatment and surgery.
Mr Webber’s father was arrested soon after the incident, but the police were not able to locate and arrest Mr Webber until 1 October 2010 – four and a half months later. Once charged, Mr Webber pleaded guilty to wounding with intent to injure. He was sentenced to 20 months’ imprisonment by Judge Davidson in the District Court at Wellington on 18 February 2011.[2] Although Judge Davidson granted Mr Webber leave to apply for substitution of that sentence with one of home detention, Mr Webber served out his prison sentence.
[2] R v Webber DC Wellington CRI-2010-091-3604, 18 February 2011.
In sentencing Mr Webber Judge Davidson referred to his “growing list of previous convictions over a 3 year period, from 2006 to 2009”, but noted that those for violence were “quite limited”.[3] Of the incident itself, the Judge commented:
[9] The aggravating features of your offending are self-evident. This was unprovoked and gratuitous. You suggest that the victim baited you and your father. Even if that is correct, it just simply does not justify a reprisal of…

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 Webber v R

Details

AGLC: Webber v R [2012] NZCA 594
Case: [2012] NZCA 594
Decision Date: 17 December 2012

CaseChat Overview and Summary

Matthew Webber appeals against the sentence of three years and six months imprisonment imposed on him by Judge Atkins QC in the District Court at Palmerston North on 23 May 2012. The appeal is against the sentence only. The appeal contends that the sentence imposed by Judge Atkins was disproportionately severe and crushing when viewed together with an earlier sentence of one year and eight months imprisonment, and then a further short sentence of 21 days imprisonment, earlier imposed on Mr Webber. Mr Forster contends that Judge Atkins erred in declining to look at the totality of Mr Webber’s criminal behaviour, including that for which the earlier sentences had been imposed. In Mr Forster’s submission, such a totality approach demanded a reduction in the sentence imposed by Judge Atkins.

The Court observes that whether or not s 85 of the Sentencing Act 2002 applies in a situation such as that here is not a straightforward issue. The Court refers to a number of cases on the point, including Skipper v R. Even if s 85 of the Sentencing Act does not apply here, totality may still be relevant given the purposes and principles of sentencing set out in ss 7 and 8 of the Act. The Court is satisfied that a total effective sentence of five years, two months and 21 days’ imprisonment would not have been manifestly excessive, had Mr Webber been sentenced by the same Judge at the same time for all the offending.

The appeal is dismissed.

Orders