Manuel v R - [2010] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND
CA111/2010
[2010] NZCA 285
BETWEENADRIAN KARL MANUEL

Appellant

ANDTHE QUEEN

Respondent

Hearing:29 June 2010

Court:Randerson, Harrison and Venning JJ
Counsel:S K Green for Appellant

M D Downs for Respondent

Judgment:5 July 2010 at 2.30 p.m.

JUDGMENT OF THE COURT

The application for leave to extend time to appeal against sentence is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]        Following a jury trial in the District Court at Hamilton Mr Manuel was found guilty of aggravated robbery and wounding with intent to cause grievous bodily harm. On 17 October 2007 Judge Clark sentenced him to 10 years’ imprisonment. He seeks leave to appeal against the sentence.[1]
The application for extension of time
[1]      R v Manuel DC Hamilton CRI-2006-019-9161 17 October 2007.
[2]        The time to appeal expired on 14 November 2007. The appeal was not filed until 4 March 2010. Mr Manuel had sought to instruct Mr Pyke earlier this year. Mr Pyke was unable to accept instructions and referred Mr Manuel to Ms Green. Ms Green filed the appeal shortly after receiving instructions.
[3]        Mr Manuel’s explanation for the substantial delay in seeking to appeal is unconvincing. He says that when, some weeks after sentence, he asked trial counsel Mr Burroughs to file an appeal he was advised that he should be happy with the sentence, that he could get longer and he should leave it. Mr Burroughs denies that. He says that after sentence was imposed, he advised the appellant to take time to consider his position, but that he never received instructions to file an appeal.
[4]        It is unnecessary to resolve the conflict in evidence on this point. Even on Mr Manuel’s account, he wanted to appeal his sentence and knew by the end of 2007 that Mr Burroughs was not willing to file an appeal on his behalf. Mr Manuel then apparently sought other advice. He says that by May 2008 he had contacted another counsel, Mr Sutcliffe, who sent him legal aid forms to return which he did, but he did not hear anything further. Mr Sutcliffe has no file nor recollection of Mr Manuel but he does have a draft letter in his word processing system dated 12 June 2009. On that date he wrote to Mr Manuel requesting him to complete a legal aid application for the Court of Appeal and provide further instructions. Mr Sutcliffe says his records do not disclose any further communication from Mr Manuel. If Mr Sutcliffe is correct, Mr Manuel did nothing to advance his appeal for approximately 18 months and then, after contacting counsel, failed to provide the necessary instructions. If Mr Manuel is correct, then he did nothing for a period of 18 months after May 2008 before attempting to instruct Mr Pyke.
[5]        On any view of it, there is a lengthy period of close to two years of unexplained delay before Mr Manuel wrote to Mr Pyke in early 2010.…

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 Manuel v R

Details

AGLC: Manuel v R [2010] NZCA 285
Case: [2010] NZCA 285
Decision Date: 5 July 2010

CaseChat Overview and Summary

Adrian Karl Manuel, the appellant, sought leave to appeal against the sentence imposed on him by the District Court. The sentence was a result of his convictions for aggravated robbery and wounding with intent to cause grievous bodily harm. The District Court had sentenced him to 10 years of imprisonment. The primary legal issue the Court of Appeal had to decide was whether the appellant was entitled to an extension of time to appeal against his sentence, and if the appeal had any merit. The Court had to consider the reasons for the delay in filing the appeal and the arguments presented concerning the sentencing.

The Court of Appeal found that the appellant's explanation for the delay in filing the appeal was unconvincing and did not justify an extension of time. The Court considered the merits of the appeal and examined three grounds advanced by the appellant: (a) whether counsel failed to advise him to plead guilty; (b) if the Judge erred in attributing an uplift to the offending on the basis that it was a home invasion; and (c) if the sentence was manifestly excessive. The Court found that the appellant's evidence was not credible and that he had consistently maintained his innocence throughout the trial. The Court also rejected the argument that the home invasion provisions warranted an uplift in the sentence. Finally, the Court held that the sentence was appropriate given the seriousness of the crime and its various aggravating factors.

The Court of Appeal dismissed the application for leave to extend time to appeal against the sentence. The appeal was found to lack merit, and the original sentence of 10 years' imprisonment was upheld.

Orders