Yukich v R - [2010] NZCA 499

IN THE COURT OF APPEAL OF NEW ZEALAND
CA459/2010
[2010] NZCA 499
BETWEENRAYMOND YUKICH

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 September 2010

Court:Arnold, Keane and MacKenzie JJ
Counsel:R J Bowden for Appellant

A R Burns for Respondent

Judgment:2 November 2010 at 2.30 pm

JUDGMENT OF THE COURT

Appeal against conviction and sentence dismissed.
REASONS OF THE COURT
(Given by Keane J)
[1]        On 28 May 2010 Raymond Yukich was sentenced after trial in the District Court, Whangarei, by Judge McDonald to imprisonment for one year, ten months for the burglary, on 16 March 2009, of a farm property at Waiotira, beyond Whangarei.[1]
[1]      R v Yukich DC Whangarei CRI-2009-088-1311, 28 May 2010.
[2]        In appealing his conviction, Mr Yukich contends the Judge effectively directed the jury to convict him of being a party to the offence, when he was no more than an innocent and passive bystander. At most, once the offence was accomplished by the principal offenders, Boss Halkyard and Santos Gillies, he might have become an accessory after the fact. In adition, Mr Yukich appeals his sentence.
[3]        Judge McDonald, Mr Yukich contends, ought not to have fixed his sentence from the one year, eight month starting point he took when sentencing Mr Halkyard and Mr Gillies in July 2009, after they had pleaded as principals to the offence. Any part he played was, by contrast, peripheral and their previous convictions were greater than his own.
Context
[4]        At Mr Yukich’s trial in March 2010, the Crown’s case was that he, Mr Halkyard and Mr Gillies, his daughter’s partner, burgled a farm house and shed and stole eight shotguns, three pistols, ammunition, alcohol, meat and groceries. This offending only came to a halt, and an abrupt one, the Crown case was, when the owner arrived and assaulted Mr Halkyard and Mr Santos with a piece of wood.
[5]        Mr Yukich, the Crown contended at trial, was a principal. He too entered the house and shed and was equally complicit in the thefts. Or he was a party. He drove to the property knowing it was to be burgled. Or he became a party when the others broke in and began to steal, beginning with the firearms, and then still remained and was the getaway driver. Shortly after, just before they were apprehended, he as much as they, concealed what had been stolen.
[6]        Mr Yukich, who elected to give evidence, said that he had come down from the north, where he lives at Horeke, to repair and collect his wife’s car. His daughter had left it immobile in Whangarei. The night before the burglary he stayed with his daughter and Mr Gillies at Ruakaka. On the day of the burglary he obtained a ride with Mr Halkyard and Mr Gillies, who were driving to Whangarei. He only happened to become the driver. He had no sense that they, one or both, might have been intent on burglary. He was an involuntary and reluctant bystander.
[7]        Once the owner brought…

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 Yukich v R

Details

AGLC: Yukich v R [2010] NZCA 499
Case: [2010] NZCA 499
Decision Date: 2 November 2010

CaseChat Overview and Summary

Raymond Yukich appeals against his conviction and sentence for a burglary that occurred on 16 March 2009. The Court of Appeal in New Zealand must determine whether the trial judge's directions to the jury were appropriate, and whether the sentence imposed was just. Yukich argues that he was an innocent bystander and should only be considered an accessory after the fact. The Crown contends that Yukich was a principal or party to the burglary. The Court of Appeal finds that the trial judge's directions were orthodox and that Yukich could have been a party to the offence if he played an active role after the initial entry. The Court of Appeal also finds that the sentence imposed was appropriate, taking into account the nature of the crime and the need for consistency in sentencing. Yukich's appeal against conviction and sentence is dismissed.

Orders