Hearing:	21 April 2020
Court:	Courtney, Wylie and Muir JJ
Counsel:	M A Edgar and V J Feyen for Appellant E J Hoskin for Respondent
Judgment:	28 July 2020 at 11 am

JUDGMENT OF THE COURT

A Leave is granted to adduce further evidence.

BThe appeal is allowed.
CThe sentence of nine years’ imprisonment is quashed and substituted with a sentence of eight years’ imprisonment.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

In June 2019 Colin Jefferies-Smith stood trial on one charge of murder in the High Court at Rotorua. He was acquitted of murder but convicted of manslaughter. Woolford J sentenced him on the manslaughter charge and on five drug-related charges to which he had subsequently pleaded guilty.[1] The end sentence of 11 years’ imprisonment was made up of a sentence of nine years on the manslaughter charge and concurrent sentences of two years on each of the drugs charges, to be served cumulatively on the sentence for manslaughter.
[1]R v Jefferies-Smith [2019] NZHC 2067.
Mr Jefferies-Smith appeals his sentence on the grounds that the Judge erred in:
(a)taking too high a starting point for the manslaughter charge; and
(b)allowing too low a discount for Mr Jefferies-Smith’s indication that he would plead guilty to manslaughter.

First ground of appeal: was the starting point too high?

The offending

The following summary of the offending is drawn largely from the Judge’s sentencing notes.[2]
[2]The first ground of appeal proceeds on the basis that some of the facts on which the Judge sentenced are disputed. We discuss those later when we consider that aspect of the appeal.
Mr Jefferies-Smith was a street-level dealer in cannabis and methamphetamine. The deceased, Lance Waite, was a senior member of the Notorious chapter of the Mongrel Mob. In the early hours of 31 December 2017 Mr Jefferies‑Smith agreed to supply methamphetamine to a woman who had a family connection to the Mongrel Mob. Mr Jefferies-Smith was unable to complete the deal and failed to return the purchaser’s money. The disgruntled purchaser sought help from Mr Waite.
In the early evening of 31 December 2017 Mr Waite took Mr Jefferies-Smith’s car in a “taxing” exercise. Mr Jefferies-Smith attempted to resolve the situation by paying money and handing over drugs to Mr Waite. He expected that his car would be returned but it was not.
Mr Waite eventually had the car taken and parked near the Greerton 2^nd Hand and Pawn Warehouse (known as the Trap) where he was staying. Mr Jefferies-Smith became increasingly angry over the next few days at the fact his car had not been returned. In the early hours of 3 January 2018 he went to the Trap to speak to Mr Waite. He arrived soon after midnight but Mr Waite was not there. Mr Jefferies‑Smith left and returned shortly after…

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 Jefferies-Smith v R

Details

AGLC: Jefferies-Smith v R [2020] NZCA 315
Case: [2020] NZCA 315
Decision Date: 28 July 2020 at 11 am

CaseChat Overview and Summary

The appeal in Jefferies-Smith v R was heard by Courtney, Wylie, and Muir JJ of the New Zealand Court of Appeal. The appellant, Colin Jefferies-Smith, sought to appeal his conviction for manslaughter and a sentence of 11 years’ imprisonment, which included concurrent sentences on drug-related charges. The grounds of appeal were that the starting point for the sentence on the manslaughter charge was too high, and that the discount for his willingness to plead guilty was too low. The court found that the starting point of 10 years was appropriate, as the facts of the case warranted a more serious sentence than the comparator cases cited by the appellant. However, the court did find that the appellant was entitled to a discount of 20% for his willingness to plead guilty, rather than the 10% discount given by the trial judge. As a result, the sentence of nine years for manslaughter was reduced to eight years.

The court first considered the starting point for the sentence on the manslaughter charge. The appellant argued that the trial judge had erred in setting the starting point at 10 years, as this was higher than in comparable cases. However, the court found that the starting point was appropriate, as the circumstances of the present case were more serious than those of the comparator cases cited by the appellant. The appellant had deliberately fired shots at a retreating figure, which the court found to be more serious than the circumstances of the comparator cases. The court also considered the appellant’s argument that the trial judge had failed to recognise the availability of self-defence. However, the court found that the trial judge was entitled to reject the evidence of self-defence, as there was no evidence to support the appellant’s account of events.

The court next considered the discount for the appellant’s willingness to plead guilty. The trial judge had accepted that a discount could be given but considered that the circumstances warranted only 10%. The court found that this was an error, as the appellant had indicated his willingness to plead guilty at an early stage. The court noted that an offender convicted of an offence for which he or she had previously indicated a willingness to plead guilty is nevertheless eligible to receive the maximum reduction available at the stage of the proceedings at which that willingness was communicated. The court found that the appellant had indicated his willingness to plead guilty at an early stage, even though he had not formally communicated this to the Crown. The court considered that a discount of 20% would have been appropriate, taking into account the benefits associated with an early indication of preparedness to plead guilty and the strength of the Crown case.

The court allowed the appeal and substituted the sentence of nine years for manslaughter with a sentence of eight years. The court also granted leave to adduce further evidence, which may be relevant to the circumstances surrounding the appellant’s willingness to plead guilty.

Orders