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R v Smail

R v Smail

Case [2008] NZCA 6 18 February 2008

Sentencing

Sentencing Indication

Miscarriage of Justice

Appeal

Jurisdiction

Criminal Law

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NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA538/07 [2008] NZCA 6

THE QUEEN

v

ERIC NEIL SMAIL

Hearing: 18 February 2008

Court: Hammond, John Hansen and Priestley JJ

Counsel: J M Ablett-Kerr QC and M J Phelps for Appellant
P K Feltham for Crown Judgment: 18 February 2008 at 4 pm Reasons: 29 February 2008
JUDGMENT OF THE COURT

A An extension of time for the appeal is granted.

B The conviction for murder is quashed and the sentence imposed in the

High Court is set aside.

C The case is remitted to the High Court at Christchurch for a trial.

R V SMAIL CA CA538/07 [18 February 2008]

EOrder prohibiting publication in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1] Mr Keith McCormick was a tetraplegic. His regular caregiver was the appellant, Mr Eric Smail. On 28 July 2005, Mr Smail killed Mr McCormick by cutting his throat whilst he sat in his wheelchair.

[2] On 12 May 2006, following a pre-trial guilty plea to a charge of murder in the High Court at Christchurch, Fogarty J sentenced Mr Smail to 12 years imprisonment with a minimum non-parole period of seven years imprisonment: HC CHCH CRI 2005-009-009464.

[3] Mr Smail’s rationale for his guilty plea was that he had been given a pre-trial indication as to sentence. As he said in his affidavit:

I had understood that the worst case scenario following my guilty plea was life imprisonment with a non-parole period of 10 years; however, I had very clearly understood that a sentence of between 6 and 8 years was far more likely given the Trial Judge’s indication to [trial counsel]. I anticipated being eligible for parole after serving one-third of my sentence. I would not otherwise have pleaded guilty.

[4] The Solicitor-General sought leave to appeal on the grounds that the circumstances of the case did not permit the imposition of a sentence other than life imprisonment and that the minimum term of imprisonment should have been substantially in excess of seven years.

[5] This Court granted leave to appeal, increasing Mr Smail’s sentence to life imprisonment with a minimum non-parole period of 13 years: [2007] 1 NZLR 411. Unfortunately, this Court was not advised of the circumstances in which Mr Smail had come to plead guilty, notably the alleged reliance on a sentencing indication from Fogarty J.

[6] Mr Smail then applied to the Supreme Court of New Zealand for leave to appeal against his sentence. On 20 September 2007, that Court dismissed the application for leave: [2007] NZSC 77. However, in doing so, the Supreme Court held (at…

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 Smail

Details

AGLC: R v Smail [2008] NZCA 6
Case: [2008] NZCA 6
Decision Date: 18 February 2008

CaseChat Overview and Summary

The appellant, Mr Eric Smail, was convicted of murdering Mr Keith McCormick, a tetraplegic man who required constant care. Mr Smail killed Mr McCormick by cutting his throat. Mr Smail pleaded guilty to murder in the High Court and was sentenced to 12 years imprisonment with a minimum non-parole period of seven years. The Solicitor-General appealed against the sentence and the Court of Appeal increased Mr Smail’s sentence to life imprisonment with a minimum non-parole period of 13 years. Mr Smail then applied for leave to appeal to the Supreme Court against his sentence. The Supreme Court dismissed the application, but noted that further appellate consideration may be warranted. Mr Smail subsequently applied for an extension of time to appeal to the Court of Appeal against his conviction and sentence, arguing that he had pleaded guilty based on "misguided advice" from his former counsel concerning the sentence he would receive and when he would become eligible for parole. He also argued that the Court of Appeal should have offered him the opportunity to vacate his plea of guilty before it increased the sentence imposed in the High Court.

The Court of Appeal granted the extension of time, quashed Mr Smail’s conviction and set aside his sentence, and remitted the case to the High Court for trial. The Court found that there was an arguable case that there was a sentence indication in the High Court, and that Mr Smail was put in an intolerable position if he pleaded guilty. The Court emphasised the importance of the accused being present at sentencing matters and noted that a legislative scheme for sentence indications has not yet been put in place. The Court made orders that the judgment is not to be published in news media, the Internet or other publicly accessible databases until the final disposition of the trial, but publication in Law Reports or Law Digests is permitted.

Orders