Liai v The King - [2024] NZSC 2

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 20/2023
[2024] NZSC 2

BETWEEN	DARNELL WILSON LIAI Applicant
AND	THE KING Respondent

Court:	Glazebrook and Kós JJ
Counsel:	M J Phelps for Applicant P D Marshall and T C Didsbury for Respondent
Judgment:	1 February 2024

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Liai is serving sentences totalling 11 years and 10 months’ imprisonment for serious violent and sexual offending. These were “second-strike” sentences imposed under the now‑repealed s 86C of the Sentencing Act 2002. The offending was committed in 2017 while Mr Liai was on parole for serious first-strike offending.
In 2020, the Court of Appeal dismissed his appeal against sentence.[1] In 2023 the Court of Appeal declined to recall that decision, holding that the order requiring the sentences be served without parole did not breach s 9 of the New Zealand Bill of Rights Act 1990.[2]
[1]Liai v R [2020] NZCA 167 (French, Dobson and Nation JJ).
[2]Liai v R [2023] NZCA 326 (French and Collins JJ).
Mr Liai seeks leave to appeal out of time against the Court of Appeal’s first decision dismissing his appeal against sentence. The two grounds he presents for appeal are:
(a)whether this Court “should adopt, with any modifications, the criteria identified in Phillips v R[3] as being appropriate factors to consider in assessing when a disproportionate sentence breached s 9”; and
(b)whether, in determining an appeal against sentence, this Court is entitled to consider the later Court of Appeal decision declining an application for recall.

Our assessment

[3]Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661.

On the first ground, Mr Liai invites this Court to offer guidance on the appropriateness of factors identified by the Court of Appeal in Phillips as potentially assisting assessment of when a sentence breaches s 9.[4] He also wishes to contend that access to rehabilitation and reintegrative activities ought also to be factors considered in assessing a s 9 breach.
[4]These factors are identified by the Court of Appeal at [28] of its judgment.
We do not consider the criteria for leave would be met by this ground. The governing principles by which to assess a breach of s 9 were stated by this Court in Taunoa v Attorney-General and Fitzgerald v R.[5] The factors identified by the Court of Appeal in Phillips were intended to be illustrative only.[6] Factors that may or may not apply in a given case are not a matter of general or public importance requiring further consideration by this Court.[7]
[5]Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429; and Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
[6]See Gemmell v R

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 Liai v The King

Details

AGLC: Liai v The King [2024] NZSC 2
Case: [2024] NZSC 2
Decision Date: 1 February 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Darnell Wilson Liai, who is serving a sentence of 11 years and 10 months for serious violent and sexual offences committed in 2017. This was his second significant offence, occurring while he was on parole for a previous serious offence. The Court of Appeal had previously dismissed his appeal against sentence in 2020, and a subsequent application to recall this decision was also dismissed in 2023. Mr. Liai now seeks leave to appeal out of time against the initial 2020 decision, arguing that the Court of Appeal did not adequately consider the potential unavailability of rehabilitative programs and reintegrative activities, and proposing two grounds for appeal. The first ground asks whether the Court should adopt the criteria identified in Phillips v R as appropriate factors to consider when assessing if a sentence breaches section 9 of the New Zealand Bill of Rights Act 1990, and the second ground asks whether the Court should consider the later Court of Appeal decision declining an application for recall.

The court considered the two proposed grounds for appeal, concluding that neither ground would meet the criteria for leave. The first ground was deemed not to raise a matter of general or public importance, and the court was not persuaded that the absence of rehabilitative programs and reintegrative activities in this case rendered the sentence so grossly disproportionate as to breach section 9. The second ground was deemed to add nothing of substance to the first and was not considered further. Consequently, the application for an extension of time to apply for leave to appeal was dismissed. The court made no further orders regarding the case.

This decision highlights the rigorous standards required to appeal against a Court of Appeal decision, particularly when seeking leave to appeal out of time. The Supreme Court emphasized that the criteria for leave to appeal must be carefully considered, and that the absence of rehabilitative programs and reintegrative activities, while potentially relevant, did not in itself warrant a reconsideration of the sentence under section 9 of the New Zealand Bill of Rights Act 1990.

Orders