R v F(CA261/07) - [2007] NZCA 417

NOTE: NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/07 [2007] NZCA 417

THE QUEEN

v

F(CA261/07)

Hearing: 17 September 2007
Court: O’Regan, Potter and Keane JJ Counsel: P E Dacre for Appellant
B J Horsley for Crown

Judgment: 25 September 2007 at 2.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

R V F(CA261/07) CA CA261/07 25 September 2007

[1] The appellant seeks an extension of time to appeal against the following sentences imposed on him by Judge Bidois in the District Court:

(a) A sentence of eight years imprisonment imposed on 21 December

2004 after the appellant pleaded guilty on arraignment to counts of rape, abduction, male assaults female and assault with intent to injure. The victim of this offending was his then partner to whom we will refer as “A”;

(b) A cumulative sentence of 3 years imprisonment imposed on 13 May

2005 after the appellant had been convicted following a jury trial of unlawful sexual connection with a girl under the age of 12. The victim of this offending was the daughter of the appellant and A, to whom we will refer as B. The offending involved the appellant getting B to perform oral sex on him. B was about eight years old at the time of the offending.

[2] The notice of appeal is dated 25 May 2007 and was filed in early June 2007. This means that, for the more recent sentence, it is almost two years out of time. The Crown opposes the granting of an extension of time to appeal.

Issues

[3] The first issue for determination is whether, in light of the explanation given by counsel for the late filing of the notice of appeal and the merits of the appeal itself, an extension of time to appeal should be granted. If an extension of time is
granted, the second issue is whether the total sentence of 11 years imprisonment is manifestly excessive for the offending against both A and B, having regard to the totality principle now codified in s 85 of the Sentencing Act 2002.

Our approach

[4] The approach to applications of this kind was set out in R v Knight [1998] 1

NZLR 583 at 587 (CA). The ultimate test is the interests of justice in the particular case, but powerful considerations are the need for finality in litigation which must be balanced against the interests of the applicant. The Court said at 589 that the applicant must demonstrate “some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given”. The Court identified a number of factors which are relevant to the assessment. These are:

(a)The strength of the proposed appeal and the practical utility of the remedies sought;

(b) The length of the…

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 F(CA261/07)

Details

AGLC: R v F(CA261/07) [2007] NZCA 417
Case: [2007] NZCA 417
Decision Date: 25 September 2007

CaseChat Overview and Summary

In the case of R v F (CA261/07), the appellant sought an extension of time to appeal against sentences imposed by the District Court. The appellant had been convicted of various offences including rape, abduction, and assault, and was sentenced to a total of 11½ years imprisonment. The appeal was filed almost two years after the time limit for doing so had expired. The Crown opposed the application for an extension of time. The primary issue for the Court of Appeal was whether the appellant should be granted an extension of time to appeal, and if so, whether the sentence was manifestly excessive. The Court of Appeal considered the strength of the appeal, the length of the delay and reasons for the delay, the impact on others similarly affected and on the administration of justice, and the absence of prejudice to the Crown. The Court concluded that the appellant had not made out a case for the extension of time for the filing of an appeal, and dismissed the application. The Court found that the reasons for the delay prior to the appellant approaching the Legal Services Agency were not compelling, and that the appeal did not have merit. The Court was satisfied that the interests of justice favoured finality over indulgence.

Orders