Legal Research
Cases
R v Cramp

R v Cramp

Case [2009] NZCA 90 26 March 2009

No judgment structure available for this case.

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND
CA496/2008
[2009] NZCA 90
THE QUEEN
v
JAN DENISE CRAMP
Hearing:11 February 2009

Court:O'Regan, Hugh Williams and Miller JJ
Counsel:R A B Barnsdale for Appellant

N P Chisnall for Crown

Judgment:26 March 2009 at 11.30 am

JUDGMENT OF THE COURT

AThe application to set aside the notice of abandonment of the appellant’s earlier appeal against conviction is dismissed.
BAn extension of time to appeal against sentence is granted but the appeal is dismissed.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]       On 20 December 2006, Mrs Cramp was found guilty by a jury in the District Court at Hamilton on three charges: abduction of a young person under 16 (a young child, whom we will call “D”), male assaults female, and common assault. She was sentenced by the trial Judge, Judge D C Clark, to 150 hours’ community work. An appeal against conviction, filed on 29 March 2007, was subsequently abandoned on 17 October 2007: see R v Lichtwark [2007] NZCA 542 at [16].
[2]       Some months later, Mrs Cramp made an application to cancel her community work sentence or to review that sentence. After a hearing on 18 July 2008, Judge Clark dismissed the application. She rejected the submission that a discharge without conviction should have been granted and re-imposed the community work sentence.
[3]       A notice of appeal against sentence was filed on 15 August 2008. The notice appears to challenge the decision of 18 July 2008 on review of the sentence rather than the original sentence. Mrs Cramp’s counsel, Mr Barnsdale, submits that the Judge was wrong not to discharge Mrs Cramp without conviction.
[4]       Prior to the hearing of this appeal, it became apparent that Mrs Cramp also wanted to appeal against her conviction for abduction. The grounds advanced in favour of this intended appeal are that there was a miscarriage of justice because:
(a)A defence to the charge, namely that Mrs Cramp believed, at the time D was removed from the house, that she and her co-offenders had a right to remove him, was not fully put by her trial counsel (not Mr Barnsdale); and
(b)The trial judge misdirected the jury on the nature of her defence under s 210A of the Crimes Act 1961.

[5]       Mrs Cramp has now filed an application for leave to vacate the notice of abandonment of her earlier appeal against conviction. She also seeks an extension of time to appeal against the original sentence, if that is required.
[6]       Before addressing these issues and the merits of the proposed appeals, it is necessary to set out the circumstances that resulted in Mrs Cramp’s convictions. A similar summary appears in this Court’s judgment in Lichtwark, which concerned the conviction appeal of a co-offender. His appeal was dismissed.
Background
[7]       Mrs Cramp’s convictions relate to events that occurred on 11 February 2006. It was alleged that on that day she, along with her daughter (Gemma Lichtwark), son-in-law (Jason Lichtwark) and…

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 R v Cramp

Details

AGLC: R v Cramp [2009] NZCA 90
Case: [2009] NZCA 90
Decision Date: 26 March 2009

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of The Queen v Jan Denise Cramp concerns an appeal against conviction and sentence. Mrs Cramp had been convicted of abducting a young person under 16, male assaults female, and common assault. She was sentenced to 150 hours of community work. An earlier appeal against her conviction was abandoned, but she later sought leave to withdraw that abandonment and appeal against her conviction on the grounds of a miscarriage of justice. She also sought an extension of time to appeal against her sentence. The appeal against sentence argued that the original sentence should have been a discharge without conviction. The Court of Appeal considered the application to set aside the abandonment of the earlier appeal against conviction, the legal issues involved in setting aside such a notice, and the merits of the proposed appeals. The Court held that the circumstances did not warrant setting aside the abandonment of the earlier appeal against conviction, as the proposed grounds of appeal lacked merit and the interests of finality in criminal cases prevailed. The Court granted an extension of time to appeal against the sentence but dismissed the appeal, finding no basis to interfere with the original sentencing decision.

Orders