R v Smith - [2007] NZCA 400

IN THE COURT OF APPEAL OF NEW ZEALAND
CA267/07
CA343/07
[2007] NZCA 400
THE QUEEN
v
KIM BRUCE SMITH
Hearing:29 August 2007

Court:Robertson, Baragwanath and Heath JJ
Counsel:M S Gibson for Appellant

D R La Hood for Crown

Judgment:10 September 2007 at 10 am

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Kim Bruce Smith filed an appeal against the effective sentence of three years’ imprisonment imposed upon him after he pleaded guilty to one charge of being unlawfully in possession of a pistol and one charge of being unlawfully in possession of explosives. He had also been found guilty of demanding with menaces a boat and stealing the boat. This term was cumulative upon an effective term of eight years’ imprisonment which had been imposed on him previously. That other term was reduced to an effective term of 7 years’ imprisonment by this Court in R v Smith [2007] NZCA 219.
[2]       The submissions filed by Mr Gibson also raised issues about the conviction. The Crown raised no opposition to that and we granted leave to bring this aspect out of time. We deal with the appeal accordingly.
[3]       The sole issue with regard to conviction is to challenge to the Judge’s ruling that circumstances surrounding the acquisition of the boat which was allegedly stolen by Mr Smith was a collateral issue and inadmissible. Mr Gibson accepted that, even if the evidence were admissible, he must still demonstrate a miscarriage of justice if the appeal were to be allowed.
[4]       As to sentence, the appeal is on the basis that the combined effective sentence of ten years’ imprisonment was manifestly excessive in the circumstances of the total offending and the Judge in this sentencing had misapplied some factual matters.
Factual circumstances
[5]       Judge D G Harvey, who presided at the trial and imposed the three year sentence of imprisonment, described the background thus:
[3]       Sometime in mid 2004 you went to Mr Gill’s property and despite the submission being made to me that there were no problems on that occasion, you did go to the property when you had been told not to. You made it clear that you wanted to talk to Mr Ostern and from Mr Gill’s point of view at least, that was a threatening conversation because you did mention, he said, that at the time of that visit you referred to being a Sergeant at Arms of the Outcast Motor Cycle Club. However, there was no incident and you left.
[4]       On 30 October you returned to that property just before ten o’clock in the evening. It was clear from the evidence at trial that prior to arriving at that property you had spoken to Mr Gill’s wife and you knew that she was away. You drove up the drive and as you had done on the previous visit you had a spotlight which you were shining around 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 Smith

Details

AGLC: R v Smith [2007] NZCA 400
Case: [2007] NZCA 400
Decision Date: 10 September 2007

CaseChat Overview and Summary

In the case of R v Smith, the appellant, Kim Bruce Smith, sought to appeal both his conviction and sentence. The conviction appeal challenged the Judge's ruling that the circumstances surrounding the acquisition of a boat, which Mr Smith was alleged to have stolen, was a collateral issue and inadmissible. The sentence appeal argued that the combined effective sentence of ten years’ imprisonment was manifestly excessive in the circumstances of the total offending and that the Judge had misapplied some factual matters. The Court of Appeal dismissed both appeals.

The Court of Appeal held that the proposed questions regarding the circumstances of the purchase of the boat were about collateral facts, as they were not directly relevant to the determination of guilt and could unnecessarily prolong the proceedings. The Court further noted that under the Evidence Act 2006, contradictory evidence could only be offered if it was substantially helpful in assessing the witness's veracity, which was not the case here.

As for the sentence appeal, the Court of Appeal found no error in the Judge's approach to aggravation and the overall seriousness of the offending. The Court held that the combined effective sentence of ten years’ imprisonment, while substantial, was within the discretion properly available to the District Court Judge, considering the totality of Mr Smith's history, attitude, and approach, as well as his continuing catalogue of serious offending.

In conclusion, the Court of Appeal dismissed both the conviction and sentence appeals, upholding the original judgment and sentence.

Orders