Lihou v The the Queen - [2022] NZSC 72

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 48/2022
[2022] NZSC 72

BETWEEN	MICHAEL SHANE HENRY LIHOU Applicant
AND	THE QUEEN Respondent

Court:	Winkelmann CJ, O’Regan and Williams JJ
Counsel:	Applicant in person B J Thompson for Respondent
Judgment:	10 June 2022

JUDGMENT OF THE COURT

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

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REASONS

The applicant was convicted after a High Court jury trial of abduction for the purpose of sexual connection, assault, rape and sexual violation of a 17 year old female complainant. He was sentenced to preventive detention with a minimum period of imprisonment of nine years and four months.[1]
[1]R v Lihou [2013] NZHC 2032 (Gendall J).
His appeal to the Court of Appeal against conviction and sentence was dismissed.[2]
[2]Lihou v R [2015] NZCA 227 (French, Simon France and Clifford JJ) [CA judgment].
He applied to this Court for leave to appeal against the Court of Appeal conviction decision but that application was dismissed.[3] He did not apply for leave to appeal against the Court of Appeal sentence decision at that time.
[3]Lihou v R [2015] NZSC 161. That decision also dismissed the applicant’s application for leave to appeal against a pre-trial decision of the Court of Appeal relating to propensity evidence.
The applicant now seeks an extension of time to apply for leave to appeal against the Court of Appeal’s sentence decision and, if the extension is given, for leave. The application is opposed by the respondent.
The decision of the Court of Appeal was delivered in June 2015, and the application now before this Court was received on 7 January 2022, so it is over six years out of time.
In support of his application for an extension of time, the applicant filed over 150 pages of supporting material. This includes historic material relating to earlier convictions, psychiatric assessments that have been undertaken recently and the applicant’s submission to the Royal Commission of Inquiry into Abuse in Care, correspondence with the Royal Commission and correspondence relating to the settlement of his claim against the Crown for the abuse he suffered while in State care. Some of this material is historic (and therefore would have been available at the time of the applicant’s sentencing) but as is apparent, the material relating to the recent psychological assessments and the applicant’s submission to the Royal Commission are fresh evidence.
The recent psychological assessments and the applicant’s submission to the Royal Commission outline the traumatic events of the applicant’s childhood and teenage years and the effects that has had on his mental well‑being. It is clear that the applicant’s treatment in his childhood and youth was extremely traumatic and that this has affected him profoundly.
The applicant wishes to pursue an appeal against the Court of Appeal decision rejecting his sentence appeal on the basis that the sentence was manifestly excessive when taking into account this…

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 Lihou v The the Queen

Details

AGLC: Lihou v The the Queen [2022] NZSC 72
Case: [2022] NZSC 72
Decision Date: 10 June 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Michael Shane Henry Lihou for an extension of time to apply for leave to appeal against his sentence. Lihou was convicted of various serious offences including abduction, assault, rape, and sexual violation. He was sentenced to preventive detention with a minimum of nine years and four months imprisonment. His appeals against both his conviction and sentence were dismissed. Lihou now seeks an extension of time to apply for leave to appeal against the Court of Appeal’s sentence decision. The Court of Appeal dismissed Lihou’s appeal on the basis that his history of offending amounted to a pattern of very serious offending, with significant consequences for the victims and the wider community. Lihou did not cooperate with the preparation of reports for his sentencing. Lihou argues that the sentence was manifestly excessive when taking into account his traumatic upbringing and its effects on his mental well-being.

The Court considered the merits of Lihou’s application and found that while he provides additional information in relation to his personal circumstances, the matters he wishes to raise are particular to his case and do not give rise to any matter of general or public importance. The Court also did not consider there was any indication of a miscarriage of justice in the way the Court of Appeal assessed the appeal against sentence. The Court found that whatever weight is given to Lihou’s personal circumstances, it could not outweigh the consideration which was appropriately determinative of his sentence - the high risk that he would commit further serious offences.

The Court concluded that Lihou’s application for leave to appeal did not meet the leave criteria in the Senior Courts Act 2016. Therefore, the application for an extension of time to apply for leave to appeal against the Court of Appeal’s sentence decision was dismissed.

The Court dismissed the application for an extension of time to apply for leave to appeal against the Court of Appeal’s sentence decision.

Orders