Brown v The The Queen - [2022] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA113/2022
[2022] NZCA 413

BETWEEN	SKYE DESTINY BROWN Appellant
AND	THE QUEEN Respondent

CA204/2022
BETWEEN	MANAIA SEW-HOY Appellant
AND	THE QUEEN Respondent

Hearing:	14 July 2022
Court:	Dobson, Peters and Downs JJ
Counsel:	N M Dutch for Appellant Brown B J Hall for Appellant Sew-Hoy J E Mildenhall for Respondent
Judgment:	31 August 2022 at 11.00 am

JUDGMENT OF THE COURT

AThe extension of time in CA204/2022 is granted.
BThe appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

Skye Brown and Manaia Sew-Hoy were convicted of aggravated robbery in relation to an intellectually disabled complainant.[1] Ms Brown was also convicted of kidnapping the same complainant.[2] Both Ms Brown and Mr Sew-Hoy received terms of imprisonment.[3] Both appeal their conviction and sentence.[4]
[1]Crimes Act 1961, ss 235(b) and 66.
[2]Section 209(b).
[3]R v Brown [2022] NZDC 3370 [Sentencing notes]. Ms Brown was sentenced to two years and nine months’ imprisonment. Mr Sew-Hoy was sentenced to two years and five months’ imprisonment.
[4]Criminal Procedure Act 2011, ss 229 and 244.
Mr Sew-Hoy’s notice of appeal was filed on 28 April 2022, some 20 working days out of time. The point was not taken at any stage, probably because the appeals related to short terms of imprisonment and there was good reason to have both appeals heard together. The Court of Appeal (Criminal) Rules 2001 provide that a notice of appeal filed out of time is to be treated as if it includes an application for an extension of time.[5] In these circumstances we grant the necessary extension of time for commencement of his appeal.

Background

[5]Court of Appeal (Criminal) Rules 2001, r 12.

The complainant suffered a brain injury when he was almost two years old. Consequently, the complainant has an intellectual disability, visual and hearing problems, and other difficulties.
The complainant met Ms Brown through church. He thought her a friend. That said, the complainant had left Ms Brown apparently stranded in more than one place because she can be “a bit too much”.
The offending occurred on 10 February 2020, in and around Tauranga.[6] The complainant was at the Welcome Bay roundabout, when another car pulled up behind his. Ms Brown got out of that car, into the complainant’s. Ms Brown told the complainant to follow the other car, which drove to a nearby Caltex service station. The complainant did. He was worried he was going to be “rolled”.
[6]The complainant was then aged 28.
At the Caltex service station, the driver of the other car — Aiden Roberts — got into the front passenger seat of the complainant’s car. Ms Brown moved into the back seat of his car. Mr Roberts told the complainant to drive to Pāpāmoa. He did.
Mr Roberts began rummaging through the complainant’s belongings and holding onto them.
Mr Roberts told the complainant to stop his car under a tree near 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 Brown v The The Queen

Details

AGLC: Brown v The The Queen [2022] NZCA 413
Case: [2022] NZCA 413
Decision Date: 31 August 2022

CaseChat Overview and Summary

Skye Destiny Brown and Manaia Sew-Hoy appealed against their convictions and sentences for aggravated robbery and kidnapping. The appeals were heard by the Court of Appeal of New Zealand and were dismissed. Brown was convicted of aggravated robbery and kidnapping while Sew-Hoy was only convicted of aggravated robbery. Both appealed on the grounds of unreasonable verdicts and manifestly excessive sentences.

In relation to the conviction appeals, the court held that the jury was entitled to conclude that the theft of the complainant’s property was an ongoing act or transaction which did not end until the defendants dropped the complainant off outside the McDonald’s restaurant. The court found it was open to the jury, acting reasonably, to conclude a common intention existed to rob the complainant. The court also held that the supplementary direction given to the jury was not unfair and did not give rise to a miscarriage of justice.

As for the sentence appeals, the court held that the starting points adopted by the sentencing Judge for both Brown and Sew-Hoy were appropriate. The court found that a 20 per cent discount was appropriate for Brown’s background. The sentences were not manifestly excessive.

The extension of time in CA204/2022 is granted. The appeals against conviction and sentence are dismissed.

Orders