King v R - [2019] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA794/2018
[2019] NZCA 413

BETWEEN	TERANGA TAHI KING Applicant
AND	THE QUEEN Respondent

Hearing:	19 August 2019
Court:	Brown, Simon France and Dunningham JJ
Counsel:	M I Koya for Applicant G R Kayes and C E Best for Respondent
Judgment:	6 September 2019 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal sentence is declined.

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REASONS OF THE COURT

(Given by Dunningham J)

On 18 January 2017, the applicant was sentenced to five years and one month’s imprisonment on one charge of aggravated robbery and one charge of robbery.[1] A minimum term of imprisonment of half the sentence was also imposed.
[1]R v King [2017] NZDC 710.
The applicant now seeks to appeal his sentence on the grounds it was manifestly excessive, saying:
(a)the starting point of five years’ imprisonment for the lead offence was excessive in the light of the guideline decision, R v Mako;[2]
(b)the sentencing Judge incorrectly referred to the aggravating features set out in R v Mako when dealing with the robbery charge; and
(c)the sentencing Judge did not give a sufficient discount to reflect the issue of rehabilitation.
[2]R v Mako [2000] 2 NZLR 170 (CA).
The applicant also submits that a minimum term of imprisonment is not warranted.

Leave

The appeal has been filed almost two years late and consequently an extension of time to appeal is required.[3] The applicant has filed an affidavit explaining that, upon imprisonment, he lost contact with the lawyer who acted for him at the sentencing. He says he did not know that he could appeal the sentence.
[3]Criminal Procedure Act 2011, s 248.
When he was transferred to Paremoremo, he spoke to other inmates about his sentence. At the time he thought he was sentenced to six years and nine months or seven years and it was suggested that his sentence was “too steep”. This advice gave him the idea to appeal and he eventually filed an appeal in December 2018 claiming, erroneously, that he was sentenced to six years and nine months or seven years’ imprisonment, which was manifestly excessive.
In order for us to grant an extension of time, the applicant must satisfy us that it is in the interests of justice to do so.[4] That typically involves an enquiry both into the reasons for the delay and to the merits of the appeal. As the merits of the appeal are inextricably linked to the question of whether leave should be granted, we propose to address them first in this judgment.

Facts

[4]R v Knight [1998] 1 NZLR 583 (CA) at 587.

On 31 August 2015 the applicant and his co-offender went to Botany Junction where they planned to commit a robbery. At about 1.00 pm the applicant went into the chosen target, the ASB Bank, while his co-offender stayed in the car outside ready to drive them both away.…

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 King v R

Details

AGLC: King v R [2019] NZCA 413
Case: [2019] NZCA 413
Decision Date: 6 September 2019 at 10.30 am

CaseChat Overview and Summary

The applicant in this case, Teranga Tahi King, appealed against his sentence of five years and one month’s imprisonment for aggravated robbery and robbery, arguing that the sentence was manifestly excessive. The Court of Appeal of New Zealand was required to decide whether the appeal was filed within the required time frame and whether the appeal had merit. The applicant argued that the starting point of five years for the lead offence was excessive, the sentencing judge incorrectly referred to the aggravating features when dealing with the robbery charge, and that the sentencing judge did not give a sufficient discount to reflect the issue of rehabilitation. The Court of Appeal found that the starting point of five years was within the range available to the sentencing judge, that the uplift imposed for the charge of robbery was appropriate, and that the discount for rehabilitation efforts was within the sentencing judge’s discretion. The Court of Appeal also found that the imposition of a minimum period of imprisonment was appropriate.

The Court of Appeal held that the application for an extension of time to appeal was declined. The Court found that the appeal was filed almost two years late, and that the applicant did not satisfy the requirements for an extension of time. The Court found that the grounds of appeal lacked merit and that the applicant had already served more than two-thirds of his sentence. The Court concluded that an extension of time would not serve the interests of justice. The Court declined the application for an extension of time to appeal.

Orders