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IN THE SUPREME COURT OF NEW ZEALAND
SC 12/2005 [2005] NZSC 77
BASIL STEVEN MARSHALL MIST
v
THE QUEEN
Hearing: 9 August 2005
Court: Elias CJ, Gault, Keith, Blanchard and Tipping JJ Counsel: R M Lithgow and N Levy for Appellant
B J Horsley and J Davidson for Crown
Judgment: 1 December 2005
JUDGMENT OF THE COURT
A. The appeal is allowed.
B. The sentence of preventive detention is quashed.
C.The sentence imposed in the High Court on count 2 is reinstated but without prejudice to the Solicitor-General’s submission that, in total, the finite sentences are manifestly inadequate.
D. The question whether that is so is remitted to the Court of Appeal for determination by that Court as if the Solicitor-General were seeking leave to appeal on that issue.
MIST V R SC 12/2005 [1 December 2005]
REASONS
Para No
Elias CJ and Keith J [1] Gault J [49] Blanchard and Tipping JJ [65]
ELIAS CJ AND KEITH J
(Given by Keith J)
[1] An offender otherwise eligible could be sentenced to preventive detention under s 75 of the Criminal Justice Act 1985 only if he or she was “not less than
21 years of age”. The present appeal turns on the meaning of s 75. Did it permit a sentence of preventive detention to be imposed on an offender who was less than
21 years of age at the time of the commission of the offence, although over the age of 21 at the dates of conviction and sentence? The time at which the age of the offender counts is not specified in s 75. In that respect it may be contrasted with the provision which replaces it in the Sentencing Act 2002, which established that the age of eligibility (18 years under the new legislation) is determined at the time of the
commission of the offence.1
[2] Basil Steven Marshall Mist committed a number of sexual offences when under the age of 21 years. He was 21 years old when he was convicted and sentenced. At the time Mr Mist was sentenced, the Criminal Justice Act had been replaced by the Sentencing Act 2002. But s 153(1)(b) of the Sentencing Act provides that eligibility for preventive detention for offences committed before the commencement date of the Sentencing Act is to be determined under s 75 of the Criminal Justice Act:
153 Offender convicted of specified offence committed before commencement date
(1) This section applies if-
1 Section 87(2) Sentencing Act 2002.
(a) an offender is sentenced on or after the commencement date for an offence committed before that date that is a specified offence as defined in section 75(4) of the Criminal Justice Act 1985; and
(b) had the court been dealing with the offender immediately before the commencement date, the court would have sentenced the offender to preventive detention under section 75 of the Criminal Justice Act 1985 or committed the offender to the High Court…
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.
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AGLC
R v Mist [2005] NZSC 77
Case
[2005] NZSC 77
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand heard an appeal from the Court of Appeal in R v Mist. The appellant was sentenced by the High Court to a total of 16 years imprisonment for multiple sexual offences committed when he was under the age of 21. The Court of Appeal substituted a sentence of preventive detention, which the appellant now appeals. The Court of Appeal's decision was based on the interpretation of s 75 of the Criminal Justice Act 1985, which provides for a sentence of preventive detention for offenders over the age of 21 who commit certain serious sexual offences. The Court of Appeal held that the appellant was eligible for preventive detention as he was over the age of 21 at the time of his conviction and sentence, despite being under 21 at the time of the offending. The Supreme Court held that s 75 of the Criminal Justice Act 1985 required the appellant to be over the age of 21 at the time of the offending, not at the time of conviction or sentence. The Court found that s 4(2) of the Criminal Justice Act 1985, which prohibits a court from imposing a sentence that it could not have imposed at the time of the offence, applied to the appellant's case. As the appellant was under 21 at the time of the offending, he was ineligible for preventive detention. The appeal was therefore allowed, and the sentence of preventive detention was quashed. The sentence imposed in the High Court was reinstated, but without prejudice to the Solicitor-General's submission that, in total, the finite sentences were manifestly inadequate. The question whether that was so was remitted to the Court of Appeal for determination by that Court as if the Solicitor-General were seeking leave to appeal on that issue.