Ambach v The Queen - [2011] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

CA621/2009
[2011] NZCA 93

BETWEEN FERDINAND AMBACH
Appellant

AND THE QUEEN
Respondent

Hearing: 4 August 2010 and 8 March 2011

Court: Ellen France, Gendall and Courtney JJ

Counsel: Appellant in person at hearing, with G J King post hearing
M J Inwood for Respondent at initial hearing, with N P Chisnall at subsequent hearing

Judgment: 24 March 2011 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

The appellant was charged with the murder of Ronald Brown. He was found guilty of manslaughter after trial. On 18 September 2009, the appellant was sentenced by Winkelmann J, who had presided over the trial, to 12 years imprisonment with a minimum period of imprisonment (MPI) of eight years.[1]
[1] R v Ambach HC Auckland CRI-2007-004-27374, 18 September 2009.
The appellant appeals against sentence on the basis it is manifestly excessive. He raises a number of matters in support of his appeal. First, he says there were matters reducing his culpability which have not been taken into account by the Judge. Secondly, he says the sentence should be adjusted to reflect the fact that if he had been advised he could offer to plead to manslaughter prior to trial, he would have done so.
The appeal proceeded in two stages. Initially, after legal aid was declined, the appellant represented himself.[2] At the initial hearing the appellant said, for the first time, he had not realised that he could have pleaded (or offered to plead) guilty to manslaughter. After hearing the other matters, the appeal was adjourned to enable the Crown and Mr Ambach the opportunity to make further enquiries about this aspect, provide any relevant information on the point to the Court and for further submissions if necessary.[3] In this phase of the proceedings, the appellant has been represented by Mr King.
[2]For more detail as to the history of the proceedings see direction of 22 January 2010 and minute of 11 June 2010.
[3] The details of the process are set out in the minute of the Court of 6 August 2010.
We add that the appellant was assisted at the initial hearing before us by Ms Szentirmay, the honorary counsel to Hungary. At the second hearing, Ms Szentirmay was formally appointed as an interpreter as no other Hungarian speaking interpreter was available. We are grateful for her assistance.

Factual background

The appellant was born in Hungary. He came to New Zealand in 2007 for a working holiday and to improve his English.
The appellant met Mr Brown, who was 69 years old, at a bar and bistro in Onehunga where both men lived. They had a drink together before leaving the bar with the intention of continuing drinking at Mr Brown’s home. The two men bought some beer on the way. At Mr Brown’s house they continued drinking. The Judge noted that the evidence at trial suggested the appellant…

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 Ambach v The Queen

Details

AGLC: Ambach v The Queen [2011] NZCA 93
Case: [2011] NZCA 93
Decision Date: 24 March 2011

CaseChat Overview and Summary

In the case of Ambach v The Queen, Ferdinand Ambach appealed against his sentence of 12 years imprisonment with a minimum period of imprisonment (MPI) of eight years for the manslaughter of Ronald Brown. The Court of Appeal dismissed the appeal. The appellant argued that the sentence was manifestly excessive, claiming there were mitigating factors not taken into account by the Judge and that he should have been advised he could offer to plead guilty to manslaughter prior to trial. The Court found no merit in the submission that the Judge ignored other explanations for the events, and that the appellant was not advised he could offer to plead guilty to manslaughter. The Court also found that the starting point and MPI adopted by the Judge were appropriate. The appeal against sentence was dismissed.

Orders