Dickey v The Queen

[2021] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA393/2018
 [2021] NZCA 600

BETWEEN	GEORGIA ROSE DICKEY Appellant
AND	THE QUEEN Respondent

Court:	Gilbert and Collins JJ
Counsel:	D J More for Appellant C A Brook and H S Cunningham for Respondent
Judgment: (On the papers)	15 November 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to withdraw the notice of abandonment of appeal is granted.

BMs Dickey’s appeal against sentence is reinstated and shall be heard in conjunction with Mr Brown’s appeal on 15–16 March 2022.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Georgia Dickey, who is now 20 years of age, pleaded guilty in March 2018 to having been a party to the murder of Jack McAllister in Invercargill on 7 June 2017.  At the time of the murder Ms Dickey was 16 years old.  Ms Dickey was one of three young people convicted of murdering Mr McAllister.  She was sentenced to life imprisonment by Dunningham J with a minimum period of imprisonment of 10 years.[1]

   [1]R v Dickey [2018] NZHC 1403.

2. On 11 July 2018, Ms Dickey filed a notice of appeal against sentence.  Mr Brown, one of Ms Dickey’s co-defendants, appealed against his conviction and sentence.  His conviction appeal was separated from his sentence appeal and has been heard and dismissed.[2]

   [2]Brown v R [2021] NZCA 120.

3. Because Ms Dickey and Mr Brown’s appeals against sentence raised important issues about imposing sentences of life imprisonment on young persons, the sentence appeal was to be considered by a Permanent Court.  The Children’s Commissioner was granted leave to intervene.

4. In September 2020, Ms Dickey abandoned her appeal.  Mr Brown’s appeal against sentence remains on course and will be considered by a Permanent Court on 15–16 March 2022. 

5. Although she was represented by counsel Ms Dickey filed her notice of abandonment of appeal without telling her lawyer.  The Crown and Ms Dickey’s counsel were concerned Ms Dickey may not have fully understood what she was doing.  The Court shared those concerns and appointed an independent lawyer to speak to Ms Dickey.  That lawyer reported that Ms Dickey insisted that she wished to abandon her appeal.

6. Ms Dickey’s lawyer has now filed on her behalf an application for leave to withdraw her notice abandoning her appeal against sentence.  Ms Dickey has sworn a supporting affidavit saying she is “still kind of confused about [her] situation”.  It is clear she blames herself for the death of Mr McAllister and for Mr Brown’s involvement in the homicide.

Legal principles

1. In R v Cramp,[3] this Court identified two grounds upon which leave might be granted to withdraw a notice of abandonment of appeal:[4]

   (a)if the notice of abandonment of appeal was null and void because it was not the result of a deliberate and informed decision; or

   (b)if, in exceptional circumstances, the interests of justice require a court to, in effect, set aside a notice of abandonment of appeal.

Analysis

[3]R v Cramp [2009] NZCA 90.

[4]At [26].

1. The Crown responsibly acknowledged “that Ms Dickey is still relatively young.  She is serving a life sentence for murder and it cannot be said the appeal is entirely without merit”.  This reflects the decision of this Court to have the sentence appeal considered by the Permanent Court.  The Crown acknowledges “[t]hese factors support the granting of leave”.

2. We are satisfied that the circumstances concerning Ms Dickey’s abandonment of her appeal were exceptional and that the interests of justice require this Court to grant her leave to withdraw her notice of abandonment of her appeal against sentence.  The issues raised by her proposed appeal are important and the merits of her proposed appeal ought to be properly considered, particularly given the fact that she is a young person currently serving a sentence of life imprisonment.

Result

1. The application for leave to withdraw the notice of abandonment of appeal is granted. 

2. Ms Dickey’s appeal against sentence is reinstated and shall be heard in conjunction with Mr Brown’s appeal on 15–16 March 2022.

Solicitors:
Crown Law Office, Wellington for Respondent