R v Gudex CA466/04

[2005] NZCA 378

IN THE COURT OF APPEAL OF NEW ZEALAND

CA466/04

THE QUEEN

v

AARON RAYMOND GUDEX

Court:  Hammond, William Young and O'Regan JJ Counsel:  E C Bulger for Appellant

S Walker for Crown

Judgment (On the papers):     28 September 2005

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

REASONS

(Given by Hammond J)

Introduction

[1]       On  22  October  2004  Mr  Gudex  was  sentenced  in  the  District  Court  at

Christchurch on a single count of aggravated robbery, following a guilty plea entered pursuant to s 135A of the Summary Proceedings Act 1957.

R V GUDEX CA CA466/04 28 September 2005

[2]      Mr Gudex was also sentenced in relation to a number of other, relatively minor, offences which are not the subject of the present appeal.

[3]      Mr Gudex was sentenced to four and a half years imprisonment.   He now appeals on the basis that that sentence is manifestly excessive, disparate with the sentence received by his co-offender, and shows insufficient credit for mitigating factors (including the guilty plea).

[4]      Leave  to  appeal  out  of  time  has  been  granted.     However  on  further considering  the  matter,  in  our  view  the  Court  is  without  jurisdiction,  for  these reasons.

[5]      The  case  came  before  Judge  Erber  under  s 28F  of  the  District  Courts Act 1947   as   Mr Gudex   had   pleaded   guilty  under   s 153A   of   the   Summary Proceedings Act 1957.  Given s 28H of the District Courts Act 1947, and s 7 of the Summary Proceedings Act 1957, the sentence appeal should have gone to the High Court:  the sentence imposed was less than five years.

[6]      The appeal is accordingly dismissed for want of jurisdiction.

Solicitors:

Layburn Hodgins, Christchurch for Appellant

Crown Law Office, Wellington