Abbott v The Queen - [2012] NZCA 43

IN THE COURT OF APPEAL OF NEW ZEALAND

CA721/2011
[2012] NZCA 43

BETWEEN GRAEME EDWARD ABBOTT
Applicant

AND THE QUEEN
Respondent

Hearing: 21 February 2012

Court: Wild, Ronald Young and Andrews JJ

Counsel: R M Gould for Applicant
J E Mildenhall for Respondent

Judgment: 28 February 2012 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

The applicant pleaded guilty to and was, on 23 March 2004, sentenced by Venning J to preventive detention with a minimum period of imprisonment of six and a half years on five counts of aggravated robbery, one of kidnapping and one of using a firearm against law enforcement officers.[1] On the remaining offences, being two charges of aggravated assault, two of unlawful possession of a firearm, five of unlawfully taking motor vehicles and one of unwilful damage, he was sentenced to concurrent sentences of imprisonment.
[1] R v Abbott HC Auckland CRI-2003-19-19334, 23 March 2004 [sentencing remarks].
On 28 October 2011 he filed a notice of appeal which, given it was filed just over seven and a half years from conviction and sentencing, required an extension of time.
The applicant seeks an extension of time to bring his appeal. First, he submits that his affidavit filed in support of the application explains the delay in appealing. Secondly, as to the merits, the applicant claims the Judge made errors in his sentencing as to the correct test to be applied when considering whether a sentence of preventive detention was appropriate.

Delay

Mr Abbott has sworn an affidavit. He says that at the time of his sentencing he was at a very low ebb. That claim is supported by an affidavit from the lawyer who appeared for him at sentencing. Mr Abbott says that once imprisoned he had decided to give up drugs and went through intense withdrawal. While he understood he had been sentenced to preventive detention he did not fully grasp the impact of the sentence for some years. He thought that the six and a half year minimum period of imprisonment imposed was a period that he could grasp on to and after which he was entitled to appear before the Parole Board. However, he says eventually the “full impact of my sentence began to sink in”.
We agree with the Crown that the evidence as to why Mr Abbott delayed in filing an appeal was very sparse. The best that can be said was that it took some years before he understood the full effect of the sentence. None of this of course explains why if he thought this sentence was wrong in some way, he did not appeal. Mr Abbott did not, therefore, provide any adequate reason for this delay.

Merits

Some background as to the sentencing is necessary to assess the merits argument. The applicant’s offending had arisen out of two very serious incidents involving aggravated robberies. It included the…

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 Abbott v The Queen

Details

AGLC: Abbott v The Queen [2012] NZCA 43
Case: [2012] NZCA 43
Decision Date: 28 February 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application from Graeme Edward Abbott, who sought an extension of time to appeal his 2004 sentence. Abbott was sentenced by Venning J to preventive detention with a minimum of six and a half years for multiple offences, including aggravated robbery, kidnapping, and using a firearm against law enforcement officers. He also received concurrent sentences for other charges. The application for an extension of time to appeal was filed over seven and a half years after the conviction and sentencing, necessitating a justification for the delay. Abbott argued that his delay in appealing was due to his initial failure to fully comprehend the implications of his sentence and his subsequent decision to abstain from drugs while in prison. The Court found that while Abbott did not fully grasp the impact of his sentence for several years, this did not adequately explain the significant delay in filing the appeal.

The Court then addressed the merits of the appeal, focusing on whether the sentencing judge had erred in applying the appropriate test when considering if a sentence of preventive detention was suitable. The sentencing judge had concluded that Abbott was at high risk of future offending and that a lengthy finite term of imprisonment would not adequately protect the public. Abbott argued that the judge had misconstrued the statutory obligations by focusing on past failures in rehabilitation programs rather than his current commitment to treatment and the uncertainty acknowledged by one of the psychiatrists. However, the Court was satisfied that the sentencing judge had properly considered all relevant factors, including Abbott's past offending, the escalation of his crimes, and the failure of previous rehabilitative efforts. The judge's sentencing remarks showed a balanced consideration of Abbott's expressed desire for change and his past unsuccessful attempts at rehabilitation.

In conclusion, the Court found that Abbott had not provided a satisfactory reason for the substantial delay in filing the appeal. Furthermore, the Court was satisfied that the sentencing judge had correctly applied the legal criteria in imposing the sentence of preventive detention. Therefore, the Court declined the application for an extension of time for the appeal.

Orders