Legal Research
Cases
Winter v The Queen

Winter v The Queen

Case [2018] NZCA 469 31 October 2018

Minimum Period of Imprisonment

Criminal Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA690/2017
[2018] NZCA 469

BETWEEN	JESSE-JAMES WINTER Appellant
AND	THE QUEEN Respondent

CA96/2018
BETWEEN	NICHOLAS ANDREW HANSON Appellant
AND	THE QUEEN Respondent

Hearing:	29 August 2018
Court:	Miller, Mallon and Gendall JJ
Counsel:	A J Bailey and E Huda for Appellant Winter A G James for Appellant Hanson S K Barr for the Respondent
Judgment:	31 October 2018 at 3.30 pm

JUDGMENT OF THE COURT

AMr Winter’s application for an extension of time to appeal his sentence is granted.
BMr Winter’s appeal against conviction is dismissed.
CMr Winter’s appeal against sentence is dismissed.
DMr Hanson’s appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Winter and a co-defendant, Mr Kumar, were convicted as parties on two charges of wounding with intent to cause grievous bodily harm and one charge of male assaults female following a jury trial in the Christchurch District Court before Judge O’Driscoll.[1] Shortly before trial, two other co-defendants, Mr Hanson and Ms McGrath, pleaded guilty to these charges for their involvement in the group assaults.
[1]Crimes Act 1961, ss 66(2), 188(1) (maximum penalty 14 years’ imprisonment), and 194(b) (maximum penalty two years’ imprisonment).
Mr Winter appeals against his conviction on two grounds. First, the trial Judge wrongly admitted a prejudicial text message sent by Mr Hanson. Secondly, the trial Judge erred in failing to provide the jury with an included lesser offence for their consideration. Mr Winter also seeks to appeal against his sentence of eight years’ imprisonment.[2] He says that, because of delay in the prosecution of the trial and the appeal, he was unable to undertake a rehabilitation programme which impeded his parole prospects and this should lead to a reduction in his sentence.
[2]R v Hanson [2017] NZDC 27289 at [87]. Mr Winter also appeared for sentencing on unrelated cannabis offending but received no additional term for this.
Mr Hanson appeals against his sentence of 10 years and nine months’ imprisonment. This included a cumulative sentence of two years and three months’ imprisonment for firearms and other charges which arose when he was apprehended on the group offending.[3] He contends the cumulative sentence was too high, having regard to totality. He also appeals the 60 per cent minimum period of imprisonment imposed on his sentence of eight and a half years’ imprisonment for the group assaults.
[3]This cumulative sentence was for possession of utensils for methamphetamine (Misuse of Drugs Act 1975, s 13; maximum one year’s imprisonment and/or $500 fine); unlawful possession of firearms (Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment and/or $5,000 fine); unlawful possession of explosives (ammunition) (Arms Act, s 45(1); maximum penalty four years’ imprisonment and/or $5,000 fine); and unlawfully taking a motorcycle (Crimes Act, s 226(1); maximum penalty seven years’ imprisonment). This was accompanied by breach of release conditions, breach of bail and the review of supervision on which Judge O’Driscoll ordered a concurrent sentence of three…

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 Winter v The Queen

Details

AGLC: Winter v The Queen [2018] NZCA 469
Case: [2018] NZCA 469
Decision Date: 31 October 2018

CaseChat Overview and Summary

Jesse-James Winter and Nicholas Andrew Hanson appeal against their convictions and sentences in the Christchurch District Court. The appeals were heard together. Mr Winter appeals against his conviction on two grounds. First, the trial Judge wrongly admitted a prejudicial text message sent by Mr Hanson. Secondly, the trial Judge erred in failing to provide the jury with an included lesser offence for their consideration. He also appeals against his sentence of eight years’ imprisonment. Mr Hanson appeals against his sentence of 10 years and nine months’ imprisonment. This included a cumulative sentence of two years and three months’ imprisonment for firearms and other charges which arose when he was apprehended on the group offending. He also appeals the 60 per cent minimum period of imprisonment imposed on his sentence of eight and a half years’ imprisonment for the group assaults. Mr Winter’s appeal against conviction was dismissed on both grounds. The Court found the trial Judge appropriately dealt with any unfair prejudice arising from the text through the direction he gave. It was open to the trial Judge to take the view he did. The Court also found the trial Judge was not required to put an alternative lesser charge to the jury. The interests of justice did not require that it be put to the jury. The Court found that it was not required to be put to the jury in the interests of justice. The United Kingdom approach requires putting obvious alternatives to the jury, not any alternative at all. Mr Winter’s sentence appeal was dismissed. The Court found there was no undue delay. Some of the delays were for Mr Winter’s benefit or in his interest. The Court found Mr Winter has not shown that his right to a trial without undue delay was breached. Mr Hanson’s sentence appeal was dismissed. The Court found the cumulative sentence imposed was at the stern end of the available range, as was the sentence for the group violence. It was appropriate to assess a sentence for the firearms charges on a totality basis, to impose that sentence cumulatively on the sentence for the group violence and to check that this did not offend the totality principle. The Court also found the trial Judge was not required to reduce the minimum period of imprisonment imposed on Mr Hanson’s sentence for the group violence. Having regard to the need to protect the community, a minimum period of imprisonment of 60 per cent was open to the Judge.

Orders