Austin v The King - [2024] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA514/2017
[2024] NZCA 420

BETWEEN	SHAUN DAVID AUSTIN Applicant
AND	THE KING Respondent

Court:	Thomas, Jagose and Grice JJ
Counsel:	Applicant in Person P D Marshall and D Lye for Respondent
Judgment: (On the papers)	4 September 2024 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment of sentence appeal is declined.

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REASONS OF THE COURT

(Given by Thomas J)

In 2017, Shaun Austin was sentenced to 11 years’ imprisonment on one charge of aggravated robbery and one of wounding with intent to cause grievous bodily harm, with a two-year concurrent sentence on one charge of injuring with intent to injure.[1] His appeal against conviction was dismissed by this Court on 30 August 2018.[2] Mr Austin had abandoned his appeal against sentence.
[1]R v Austin [2017] NZDC 18676 [sentencing notes]; and Crimes Act 1961, ss 235(c), 188(1) and 189(2).
[2]Austin v R [2018] NZCA 334.
Mr Austin has now applied for leave to withdraw the notice of abandonment in respect of the sentence appeal on the grounds the Judge failed to consider relevant factors set out in a cultural report completed on 15 September 2023.

Procedural background

Mr Austin originally purported to appeal his sentence but, given his earlier abandonment of his sentence appeal, the application has been treated as an application for leave to withdraw the notice of abandonment.
At the time of the application, Mr Austin was represented by counsel. He confirmed the sole ground of appeal was that the sentence was manifestly excessive on the grounds the Judge failed to consider relevant factors set out in a much later obtained cultural report. The cultural report was completed in 2023 and, in counsel’s submission, outlined a nexus between Mr Austin’s background and the offending.
Counsel acknowledged the timetable for submissions and sought an extension of time to confirm instructions. He then filed a memorandum dated 15 July 2024, saying that multiple attempts had been made but Mr Austin refused to engage with counsel and declined to attend the meetings and telephone calls counsel organised.
The application was set down for a hearing on the papers in the week of 29 July 2024. The cultural report, being a Hōkai Tapuwae report completed by Kōhatu Mauri on 15 September 2023, is on the Court file.
A party is not obliged to file submissions. The Court of Appeal (Criminal) Rules 2001 notes that the Registrar must appoint a period within which “submissions may be made”.[3] By Minute dated 24 July 2024 sent to counsel and separately to Mr Austin, the Court directed that any submissions which were to be filed were required by 31 July 2024.
[3]Court of Appeal (Criminal) Rules 2001, r 29(4) (emphasis added).
No further submissions have been received either from counsel or Mr Austin. The Crown filed and served submissions.

Sentencing

Mr Austin was sentenced on 22 August 2017 in 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 Austin v The King

Details

AGLC: Austin v The King [2024] NZCA 420
Case: [2024] NZCA 420
Decision Date: 4 September 2024 at 3.30 pm

CaseChat Overview and Summary

Shaun David Austin has applied for leave to withdraw the notice of abandonment of his sentence appeal, which was initially abandoned in 2017. The Court of Appeal, comprising Thomas, Jagose, and Grice JJ, reviewed the application. The primary legal issue before the court was whether exceptional circumstances existed to justify setting aside the notice of abandonment, which would allow the appeal against sentence to proceed. The application was made on the ground that the sentencing judge failed to consider relevant cultural factors detailed in a Hōkai Tapuwae report completed in September 2023.

The Court considered the procedural background of the case, noting that Mr. Austin had previously abandoned his sentence appeal but now sought to withdraw that notice of abandonment. The cultural report, which was not before the sentencing judge at the time of the original sentencing, outlines Mr. Austin’s background and the cultural factors relevant to his offending. The Court acknowledged that the sentencing judge had considered a similar letter from Mr. Austin's partner that contained similar information. Despite the late submission of the cultural report, the Court found that the judge had already taken into account the relevant personal circumstances and provided a discount on the sentence. The Court concluded that there were no exceptional circumstances that warranted setting aside the notice of abandonment, and thus, the application was declined.

The Court's decision was based on the fact that the sentencing judge had already considered and taken into account the relevant personal circumstances of Mr. Austin, which were substantially similar to the information in the cultural report. The Court found no error in the sentence and no justification to grant leave to withdraw the notice of abandonment. The application was dismissed, and Mr. Austin's appeal against sentence remains abandoned.

Orders