Opetaia v R - [2013] NZCA 434

IN THE COURT OF APPEAL OF NEW ZEALAND

CA672/2012
CA507/2013
[2013] NZCA 434

BETWEEN	AMY JAYNE OPETAIA Appellant
AND	THE QUEEN Respondent

Hearing:	9 September 2013
Court:	Wild, Cooper and Lang JJ
Counsel:	R A A Weir and H J Carson for Appellant M J Inwood for Respondent
Judgment:	19 September 2013 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time within which to appeal against the sentences imposed by Courtney J is dismissed.
BThe application for an extension of time within which to appeal against the sentences imposed by Judge Blackie is granted.
CThe appeal against the sentences imposed by Judge Blackie is allowed. The sentences are quashed, and cumulative sentences of three years imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Introduction

Ms Opetaia pleaded guilty in the High Court to a wide array of charges including aggravated robbery, burglary and theft. On 2 November 2010, Courtney J sentenced her to nine years imprisonment on those charges.[1] This comprised two cumulative sentences of four and five years imprisonment respectively. Courtney J also ordered Ms Opetaia to serve a minimum term of three years three months imprisonment in respect of the latter sentence.
[1]R v Stephens HC Auckland CRI-2010-004-1971, 2 November 2010.
Ms Opetaia was subsequently found guilty by a District Court jury on two further charges of aggravated robbery and a charge of assault with intent to rob. On 3 April 2012, Judge Blackie sentenced her to an effective term of six years imprisonment on those charges.[2] He directed that Ms Opetaia was to serve that sentence cumulatively on the existing sentence of nine years imprisonment she was already serving. As a result, Ms Opetaia is now required to serve a notional single sentence of 15 years imprisonment.
[2]R v Opetaia DC Manukau CRI-2010-092-7688, 3 April 2012.
Ms Opetaia applies for an extension of time within which to appeal against the sentences imposed by both Courtney J and Judge Blackie. She seeks to argue that the end sentence she received is manifestly excessive.
The Crown opposes an extension being granted. It points out that the appeal in respect of the sentences imposed by Courtney J would be 19 months out of time, and that in respect of the sentences imposed by Judge Blackie would be five months out of time.

The offending for which Ms Opetaia was sentenced by Courtney J

Courtney J sentenced Ms Opetaia to four years imprisonment in respect of a charge of aggravated robbery that was laid as a result of an incident that occurred in the early hours of 24 October 2009. The cumulative sentence of five years imprisonment related to ten further offences that Ms Opetaia committed in February 2010.

24 October 2009: Aggravated robbery

At about 4.30 am on 24 October 2009, Ms Opetaia and an unknown male associate went to a residential address in central Auckland. Ms Opetaia waited outside the address whilst her associate entered the address through…

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 Opetaia v R

Details

AGLC: Opetaia v R [2013] NZCA 434
Case: [2013] NZCA 434
Decision Date: 19 September 2013 at 10.30 am

CaseChat Overview and Summary

Ms Opetaia appealed against the sentences imposed by Courtney J and Judge Blackie, arguing that the end sentence of 15 years imprisonment was manifestly excessive. The court had to decide whether an extension of time should be granted to appeal against the sentences and if the sentences imposed by Judge Blackie were disproportionate to the gravity of Ms Opetaia's overall offending.

The court found that an extension of time to appeal against the sentences imposed by Courtney J should not be granted due to the significant delay in filing the application. However, the court granted an extension of time to appeal against the sentences imposed by Judge Blackie, as the delay was not as substantial. The court found that the cumulative sentence imposed by Judge Blackie led to an end sentence of 15 years imprisonment, which was wholly out of proportion to the gravity of Ms Opetaia's overall offending. The court determined that an effective end sentence of 12 years imprisonment was more appropriate, considering Ms Opetaia's age and overall culpability.

The appeal against the sentences imposed by Judge Blackie was allowed. The sentences were quashed, and cumulative sentences of three years imprisonment were substituted.

Orders