A v The Queen - [2012] NZSC 76

NOTE: THERE IS AN EXTANT ORDER SUPPRESSING THE NAMES AND IDENTIFYING PARTICULARS OF THE APPLICANT AND HER FATHER

IN THE SUPREME COURT OF NEW ZEALAND

SC 43/2012
[2012] NZSC 76

THE QUEEN

Court: Elias CJ, McGrath and Chambers JJ

Counsel: C Mitchell for Applicant
A Markham for Crown

Judgment: 24 August 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal against conviction 11 months out of time on the basis that she should have been discharged without conviction under s 106 of the Sentencing Act 2002.[1]
[1] A (CA 747/2010) v R [2011] NZCA 328.
The applicant pleaded guilty to a count of conspiracy to commit incest. It is accepted that no actual incest took place between the applicant and her natural father but plans to participate in sexual activity were made over a period of some months. The sentencing judge, in a fully reasoned decision in which he examined and rejected suggestions that the impact of a conviction would be disproportionate, rejected that submission that she be discharged without conviction. The applicant was convicted and ordered to come up for sentence within 12 months if called upon.
The applicant’s appeal to the Court of Appeal was dismissed. The Court considered all matters advanced on behalf of the applicant as to the disproportionate effect of conviction. Given the permanent name suppression imposed by the judge, the Court considered that the suggestions of impact of conviction (upon the applicant’s employment and immigration status and on questions of access and custody relating to her children) were to some extent speculative, although accepting there could be such adverse effects. Nevertheless, it concluded that the “seriousness of the departure from community standards involved in [the offending]”[2] meant that the consequences of conviction were not out of proportion to the gravity of the offending. The courts should not usurp the role of the relevant registration bodies, employers and the immigration service in assessing whether the convictions properly impacted upon the applicant’s standing. The Court considered that the sentencing judge had achieved a correct balance between acknowledging the seriousness of the offending and the wider community interests against the private interests of the applicant by entering convictions on the basis of name suppression.
[2] At [30].
The applicant seeks to traverse matters fully considered by the sentencing Judge and by the Court of Appeal. No matter of general or public importance arises. Nor is there any matter advanced which raises the possibility of a substantial miscarriage of justice. No question of law or sentencing principle arises. Nor is there explanation for the delay in making the application. In these circumstances, the criteria for leave to appeal to this Court under s 13 of the Supreme Court Act 2003 are not made out and the application must be declined.

Solicitors:
Crown Law Office, Wellington

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.

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Details

Case: [2012] NZSC 76
Decision Date: 24 August 2012

CaseChat Overview and Summary

The case of A v The Queen involved the applicant, a woman who had pleaded guilty to conspiracy to commit incest, seeking leave to appeal against her conviction 11 months out of time. The applicant argued that she should have been discharged without conviction under section 106 of the Sentencing Act 2002. The application was heard by the Supreme Court of New Zealand, with Elias CJ, McGrath, and Chambers JJ presiding. The applicant was represented by C Mitchell, and the Crown was represented by Markham. The Court dismissed the application for leave to appeal on 24 August 2012.

The legal issues before the Court were whether the applicant's application for leave to appeal was made out of time and whether there were any grounds for the appeal that warranted the Court's consideration. The applicant had previously been convicted of conspiracy to commit incest, and although no actual incest had taken place, plans to participate in sexual activity were made over a period of several months. The sentencing judge had rejected the applicant's submission that she be discharged without conviction, and the Court of Appeal had also dismissed the applicant's appeal. The applicant now sought to appeal to the Supreme Court of New Zealand, arguing that the impact of the conviction would be disproportionate.

The Court found that the applicant's appeal was made out of time and that there were no grounds for the appeal that warranted the Court's consideration. The Court noted that the applicant had not advanced any matter of general or public importance, nor had she raised the possibility of a substantial miscarriage of justice. The Court also found that no question of law or sentencing principle arose from the case, and there was no explanation for the delay in making the application. Therefore, the Court held that the criteria for leave to appeal under section 13 of the Supreme Court Act 2003 were not made out, and the application for leave to appeal was dismissed. The Court ordered that the applicant's application for leave to appeal be dismissed, and there were no further orders made.

Orders